Opinion
Plaintiff Jacobs Farm/Del Cabo, Inc., sued defendant Western Farm Service, Inc., 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.)
I. Background
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 that 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
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 fist 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 “[notwithstanding 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 its 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.
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
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 1980’s 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 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.”
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.
III. Contentions
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 that conduct authorized by law is not a nuisance, barred plaintiff’s nuisance cause of action.
We begin our discussion with a brief summary of the statutory and regulatory scheme.
IV. Discussion
A. The Statutory Scheme
It is an understatement to say that the use of pesticides in California is highly regulated. Federal and state laws govern every aspect of pesticide use, from testing, approval, and labeling of pesticides to licensing pesticide applicators and investigating complaints of pesticide-related injuries. (See 7 U.S.C. § 136 et seq.; Etcheverry v. Tri-Ag Service, Inc. (2000)
The code sections relevant to this case are found in divisions 6 and 7 of the Food and Agricultural Code. The express purposes of the relevant provisions of divisions 6 and 7 include providing for the “safe, and efficient use of pesticides essential for production of food,” protecting the environment, pesticide workers, and public health, and encouraging the development of pest management systems that “achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.” (§ 11501, subds. (a), (f).)
Division 7 regulates the use of pesticides. (§ 12500 et seq.) Of particular interest to us is article 1 of chapter 3 of division 7, pertaining to “restricted materials,” which includes the organophosphate pesticides at issue in this case. (§ 14004.5; tit. 3, § 6400; 7 U.S.C. §§ 136, 136a.) Under the provisions of this article, no person may apply agricultural pesticides classified as restricted without first obtaining a permit from the commissioner in the county where the materials are to be applied. Every permit issued “shall include conditions for use in writing.” (§ 14006.5.) The permits are site specific and are generally issued on a yearly basis. (§ 14007; tit. 3, § 6422.) Within 24 hours of any planned application, the farm operator or the pesticide
Notwithstanding its permit requirements, article 1 of chapter 3 of division 7, “does not relieve any person from liability for any damage to the person or property of another person which is caused by the use of any restricted material.” (§ 14003.) Moreover, the Legislature has tempered the commissioner’s permitting authority with section 14009. Under section 14009, subdivision (a), “Any interested person” may ask the commissioner to review a decision pertaining to the issuance, refusal to issue, revocation, or suspension of a permit. “A directly affected person may thereafter appeal to the director to review the commissioner’s action.” (Ibid.) The commissioner and the director must act on a request for review or appeal within 10 days (id., subds. (a) & (e)) and both are directed to conduct their reviews, “in an expeditious manner so that needed pest control measures are not adversely affected” (id., subd. (b)). Judicial review of any decision by the director under section 14009 may be had via a petition for writ of administrative mandamus. (Id., subd. (g); Code Civ. Proc., § 1094.5.)
At the heart of this case is title 3, section 6614. Title 3, section 6614, provides, in pertinent part, “(a) An applicator prior to and while applying a pesticide shall evaluate the equipment to be used, meteorological conditions, the property to be treated and surrounding properties to determine the likelihood of harm or damage. [f] (b) Notwithstanding that substantial drift will be prevented, no pesticide application shall be made or continued when: [][] . . . [f] (2) There is a reasonable possibility of damage to nontarget crops . . . .” (Tit. 3, § 6614, subds. (a), (b)(2).)
Violation of any provision of either division 6 or 7 or any associated regulation is a misdemeanor subject to fines and imprisonment or civil penalties. (§§ 11891-11895, 12996-12999.) Any money recovered is paid to the DPR. (§ 12998.) The director or a commissioner may also seek an injunction to restrain the violation of any order made pursuant to division 6 or 7. (§§ 11895.5, 13000.1.) Section 12999.2 specifies, “The remedies or penalties provided by [division 7] are in addition to the remedies or penalties available under any other law.” Neither division authorizes monetary compensation for property damage caused by violation of the pesticide laws.
Finally, section 11501.1, subdivision (a) provides that divisions 6 and 7 “are of statewide concern and occupy the whole field of regulation regarding the registration, sale, transportation, or use of pesticides to the exclusion of all local regulation. Except as otherwise specifically provided in this code, no ordinance or regulation of local government, including, but not limited to, an action by a local governmental agency or department, a county board of supervisors or a city council, or a local regulation adopted by the use of an initiative measure, may prohibit or in any way attempt to regulate any matter relating to the registration, sale, transportation, or use of pesticides, and any of these ordinances, laws, or regulations are void and of no force or effect.”
B. Injunctive Relief
Defendant’s first argument is that the superior court has no jurisdiction to entertain a private suit for injunctive relief pertaining to the use of regulated pesticides. Defendant recognizes that the issue is moot but asks us to decide the issue due to its statewide importance. Plaintiff takes the opposite view. Plaintiff’s view is the correct one. The general rule is, “Courts do not decide abstract questions of law. An indispensable element to jurisdiction is that there be an actual controversy between parties who have an adversarial interest in the outcome of the litigation.” (Connerly v. Schwarzenegger (2007)
In this case, the question of the court’s power to issue an injunction is moot because there is no injunction; plaintiff dismissed its prayer for
Although the issue is not squarely before us, we do question whether the process plaintiff employed in attempting to protect its 2007 crop was the process the Legislature had contemplated. The deputy commissioner found that defendant had not violated the law in 2006 and defendant’s permits for the 2007 growing season apparently allowed the use of the same pesticides in the same places they were allowed in 2006.
C. Common Law Claims for Damages
1. Scope and Standard of Review
Defendant’s remaining arguments concern the scope of the statutory scheme and its effect upon the common law claims alleged. Defendant
Although the parties describe their arguments in the language of preemption, the preemption doctrine is not strictly applicable to the questions presented, although the analysis is similar. Preemption applies where federal law supersedes state law or state law supersedes local law. (Zengen, Inc. v. Comerica Bank (2007)
The rule is that statutes do not displace the common law “ ‘unless it appears that the Legislature intended to cover the entire subject or, in other words, to “occupy the field.” ’ (I. E. Associates v. Safeco Title Ins. Co. (1985)
2. The Pesticide Laws Do Not Displace All Common Law Tort Claims
By the time of trial, the deputy commissioner had found that both the 2006 and the 2007 applications were legal and the main thrust of the defense was that defendant had complied with its permit conditions, that it had done what other pesticide applicators would have done in the same situation, and that the deputy commissioner’s findings showed that defendant had not breached any duty of care to plaintiff. In short, the case went forward as a simple tort case seeking only monetary damages.
Although the scope of the statutory and regulatory scheme is broad, it provides no means of compensation for crop losses resulting from pesticide use. Section 14003 specifies that the article requiring permits for restricted use pesticides “does not relieve any person from liability for any damage to the person or property of another person which is caused by the use of any restricted material.” Since the law makes no provision for a damages remedy, section 14003 implies that injured persons retain the right to sue for damages under the common law. And section 12999.2 expressly confirms that the “remedies or penalties” provided by division 7 are “in addition to the remedies or penalties available under any other law.” Given these savings clauses, it is reasonable to conclude that the Legislature intended, as a general matter, to allow for common law claims seeking damages. Defendant does not contend otherwise.
Defendant’s challenge to plaintiff’s damage claims rests in large part upon the fact that the deputy commissioner found defendant had not violated title 3, section 6614. Whether or not the deputy commissioner’s interpretation of that section was correct, the fact was that her finding of no violation in 2006 was not submitted to any administrative challenge and was a final decision on the merits of the issue she decided. She reached the same conclusion on her review of the 2007 pesticide applications. Defendant argues that these findings should have been given collateral estoppel effect. Amici curiae, California Farm Bureau Federation and Air Coalition Team, maintain that the suit should have been dismissed at the outset because plaintiff failed to exhaust administrative remedies challenging the deputy commissioner’s no-violation finding. Neither defense was litigated below. In any event, we reject the arguments.
The exhaustion of administrative remedies doctrine is this: “[W]here an administrative remedy is provided by statute, relief must be sought from the administrative body and this remedy exhausted before the courts will act.” (Abelleira v. District Court of Appeal (1941)
Defendant’s collateral estoppel argument invokes the judicial exhaustion doctrine, which may arise when a party initiates and takes to decision an administrative process, “whether or not the party was required, as a matter of administrative exhaustion, to even begin the administrative process in the first place.” (McDonald v. Antelope Valley Community College Dist. (2008)
As should be clear from the foregoing, the judicial exhaustion doctrine does not apply here for at least two reasons. First, the decision does not have the judicial character needed for collateral estoppel to apply. The deputy commissioner conducted an investigation. The investigation was not a quasi-judicial process nor did the statutory scheme provide any fair hearing procedure for plaintiff to challenge the deputy commissioner’s finding. Citing Patterson Flying Service v. Department of Pesticide Regulation (2008)
The collateral estoppel doctrine does not apply for the additional reason that the deputy commissioner’s conclusion—that defendant had not violated title 3, section 6614—was not dispositive of any material fact necessary to prove plaintiff’s common law causes of action. As to the negligence cause of action, it is elementary that in order to establish liability, a plaintiff must prove that the defendant breached a duty of care that was the proximate cause of injury to the plaintiff. (Artiglio v. Corning Inc. (1998)
Almost 60 years ago, the Attorney General issued an opinion with which we agree today. The opinion was rendered in response to questions about the effect of the then newly enacted provisions requiring a permit for the application of potentially injurious agricultural chemicals. Responding to concern that compliance with permit requirements might relieve pesticide applicators from liability for negligent acts, the Attorney General opined: “Nowhere does it state that if one has secured the necessary permit and has observed all the established rules and regulations, he should be held blameless for his negligent act. The rules and regulations as established from time to time will undoubtedly indicate the manner in which an individual who desires to be free of negligence should operate. The mere fact, however, that he follows the rules and regulations does not in itself guarantee that he is free of negligence. And nowhere is he relieved of responsibility for his negligent acts.” (
In sum, to the extent defendant argues that the deputy commissioner’s decision should have had some preclusive effect upon plaintiff’s claims for damages, we reject it. In this regard, the statutory scheme and the common law are complementary, not conflicting. Plaintiff’s lawsuit had no effect upon the commissioner’s ability to regulate pesticide use or upon the validity of the deputy commissioner’s conclusion as it pertained to defendant’s liability under the pesticide laws. Similarly, the deputy commissioner’s determination that defendant had complied with the law did not bar plaintiff from pursuing defendant for damages arising from its alleged lack of due care.
4. Negligence Per Se
Defendant also argues that the trial court erred by instructing the jury in the doctrine of negligence per se. Plaintiff’s briefs do not address the argument. Nevertheless, we reject it.
Here, the crux of the dispute was whether title 3, section 6614 was intended to prevent the possibility of damage caused by postapplication drift. Although plaintiff’s attorney told the jury that it was being asked to decide this question, the trial court had effectively decided it before the jury got the case. As our Supreme Court has explained, “The significance of the statute in a civil suit for negligence lies in its formulation of a standard of conduct that the court adopts in the determination of such liability. [Citations.] The decision as to what the civil standard should be still rests with the court, and the standard formulated by a legislative body in a police regulation or criminal statute becomes the standard to determine civil liability only because the court accepts it.” (Clinkscales v. Carver (1943)
Defendant maintains that the negligence per se instruction was error because it allowed the jury to second-guess the deputy commissioner. Given the trial court’s implicit finding—that title 3, section 6614 applies to post-application drift—the error of which defendant complains is, in effect, that the trial court’s interpretation of title 3, section 6614 conflicted with the deputy commissioner’s interpretation. As a threshold matter, we find that the trial court’s interpretation was the correct one.
Again we note that title 3, section 6614 requires a pesticide applicator “prior to and while applying a pesticide” (id,., subd. (a)) to evaluate the weather and other circumstances “to determine the likelihood of harm or damage” (ibid.) and to defer or halt a pesticide application if there is “a reasonable possibility of damage to nontarget crops” (id., subd. (b)(2)). The
The trial court was not bound to defer to the deputy commissioner’s interpretation. It is the job of the court to interpret the laws and construe the law the agencies are charged with enforcing. (Hewlett v. Squaw Valley Ski Corp. (1997)
It is true that the statutory scheme contemplates that the commissioners will exercise ongoing, day-to-day, local oversight of pesticide use. Section 11501, subdivision (d) states that one of the express purposes of the law is to “permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.” (Italics added.) The comprehensive nature of the applicable statutory schemes, along with the Legislature’s express intent to occupy the whole field of regulation (§ 11501.1), reveals a legislative intent to confine the process for adjudication of violations of the pesticide laws to the agencies charged with enforcement. In this case, however, the issue was whether defendant’s past conduct had been negligent. By giving the negligence per se instruction the trial court was not allowing the jury to adjudicate defendant’s guilt or innocence. Insofar as defendant’s liability under the pesticide laws is concerned, that was decided by the deputy commissioner. Nothing that occurred in the context of this case changed that.
Defendant’s argument is similar to one rejected by our Supreme Court in connection with a preemptive federal law. In Elsworth v. Beech Aircraft Corp. (1984)
The Supreme Court noted that, since the federal law clearly allowed state tort remedies, the critical issues were “whether there is an ‘irreconcilable conflict between the federal and state standards or whether the imposition of a state standard in a damages action would frustrate the objectives of the federal law.’ (Silkwood[ v. Kerr-McGee Corp. (1984)] 464 U.S. [238,] 256 [
Elsworth also determined that administration of the FAA (Federal Aviation Administration) certification program was not threatened by allowing a state to hold a manufacturer liable under negligence per se principles.'“If anything, the converse is true. ... An inquiry in a state court into whether the manufacturer in fact complied with the regulations, such as the extensive testimony in the present case of post-accident flight tests of the Travel Air and the relation of the results of those tests to the requirements of the safety regulations, would assist the FAA in policing a manufacturer’s compliance rather than hampering the agency in this regard.” (Elsworth, supra,
5. Common Law Claims Pertaining to the Place a Pesticide Is Applied
We also reject defendant’s argument that the pesticide laws bar common law claims based solely upon the place a pesticide is used. In an action for damages arising from the application of restricted-use pesticides, the place of application will always be inextricably connected in some way to the manner and timing of the application. Since the Legislature clearly intended to preserve common law claims for damages, we are reluctant to find one factual basis for such a claim to be precluded where there is no express legislative indication to that effect. Furthermore, defendant’s argument is, in effect, that where the claim relates only to the place, a use permit makes a defendant absolutely immune from liability. But again, although compliance with the law or with the conditions of a permit may be evidence that the defendant was not negligent, it is not conclusive of the issue.
Defendant makes much of the in terrorem effect of civil suits, arguing that they regulate behavior as much as any local ordinance can. But the argument has no bearing upon our decision. If a civil suit seeking compensation for an injury caused by the negligent application of a pesticide causes a pesticide applicator to take additional precautionary measures, so be it. It is the law that if a pesticide applicator knows or should know that an injury is the reasonably possible result of applying a pesticide in a particular place, the mere existence of a permit does not give the pesticide applicator a license to ignore those consequences. (Tit. 3, § 6614.)
6. Nuisance
Defendant’s final argument is that the trial court erred in refusing to strike plaintiff’s nuisance cause of action on the ground it was barred by Civil Code
In general, our Supreme Court has “consistently applied a narrow construction to [Civil Code] section 3482 and to the principle therein embodied.” (Greater Westchester Homeowners Assn. v. City of Los Angeles (1979)
Defendant relies upon Farmers Ins. Exchange v. State of California (1985)
Defendant refers to Farmers’ s holding that a statutory authorization “need not predict” the nature of the damages, arguing that in this case the permits authorized its application of pesticides to the Brussels sprouts field and need not have predicted the particular injury plaintiff alleged. We reject the argument. The damaged property in Farmers was located in the very place the law authorized the chemical to be sprayed. Here, the permits authorized application to the Brussels sprouts fields but the damage occurred on plaintiff’s land. It is undisputed that defendant was not authorized to spray there.
Farmers is also distinguishable because the appellate court relied not only upon Civil Code section 3482 but also upon the defense of necessity. Quoting the standard treatise, Farmers explained, “Necessity is a complete defense to these torts. ‘A defendant who acts to prevent a threatened injury from some force of nature, or some other independent cause not connected with the plaintiff, is said to be acting under necessity. ...[!]... Where the danger affects the entire community, or so many people that the public interest is involved, that interest serves as a complete justification to the defendant who acts to avert the peril to all. . . .’ (Prosser and Keeton, Torts (5th ed. 1984) pp. 145-146.)” (Farmers, supra,
Farmers is one of only a handful of cases applying the Civil Code immunity. In general, the cases that apply the protection do so where the alleged nuisance is exactly what was lawfully authorized (Jordan v. City of Santa Barbara, supra,
Varjabedian, supra,
Here, the permits authorized application of the pesticides to the Brussels sprouts fields surrounding plaintiff’s farm; they did not authorize application of pesticides or the damage to plaintiff’s crop. To the extent a permit may be deemed to authorize any particular application of pesticide, it does so within the context of a statutory and regulatory scheme designed to insure that pesticides are used effectively with minimum risk of injury to persons, property, and the environment. Like the statutes in Varjabedian, the pesticide laws and the permits issued by the commissioners are intended to prevent, not authorize, the very nuisance alleged here.
We conclude, therefore, that plaintiff’s nuisance cause of action was not barred by Civil Code section 3482. It follows that the trial court did not err in refusing to strike the nuisance cause of action or in failing to instruct the jury in the language of Civil Code section 3482.
The judgment is affirmed. The parties shall bear their own costs on appeal.
Rushing, R J., and Elia, J., concurred.
Notes
Further undesignated section references are to the Food and Agricultural Code. Further references to “title 3” are to title 3 of the California Code of Regulations.
The particular chemicals used were chlorpyrifos, diazinon, and dimethoate, among others.
We have received and considered briefs from amici curiae California Farm Bureau Federation and Air Coalition Team on behalf of defendant and the National Resources Defense Council and Center on Race, Poverty, and the Environment on behalf of plaintiff.
Section 11501 provides in full: “The purposes of this division and Chapter 1 (commencing with Section 12501), Chapter 2 (commencing with Section 12751), Chapter 3 (commencing with Section 14001), and Chapter 3.5 (commencing with Section 14101) of Division 7 are as follows:
“(a) To provide for the proper, safe, and efficient use of pesticides essential for production of food and fiber and for protection of the public health and safety.
“(b) To protect the environment from environmentally harmful pesticides by prohibiting, regulating, or ensuring proper stewardship of those pesticides.
“(c) To assure the agricultural and pest control workers of safe working conditions where pesticides are present.
“(d) To permit agricultural pest control by competent and responsible licensees and permittees under strict control of the director and commissioners.
“(e) To assure consumers and users that pesticides are properly labeled and are appropriate for the use designated by the label and that state or local governmental dissemination of information on pesticidal uses of any registered pesticide product is consistent with the uses for which the product is registered.
“(f) To encourage the development and implementation of pest management systems, stressing application of biological and cultural pest control techniques with selective pesticides when necessary to achieve acceptable levels of control with the least possible harm to nontarget organisms and the environment.”
Title 3, section 6614 provides in full: “(a) An applicator prior to and while applying a pesticide shall evaluate the equipment to be used, meteorological conditions, the property to be treated and surrounding properties to determine the likelihood of harm or damage.
“(b) Notwithstanding that substantial drift will be prevented, no pesticide application shall be made or continued when:
“(1) There is a reasonable possibility of contamination of the bodies or clothing of persons not involved in the application process;
“(2) There is a reasonable possibility of damage to nontarget crops, animals or other public or private property; or
“(3) There is a reasonable possibility of contamination of nontarget public or private property, including the creation of a health hazard, preventing normal use of such property. In*1519 determining a health hazard, the amount and toxicity of the pesticide, the type and uses of the property and related factors shall be considered.”
The permits themselves do not appear in the record.
We discuss the nuisance cause in further detail below.