Gerawan Farming v. CA Table Grape Comm. 12/17/01 CA5

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State: California

Court: 1st District Court of Appeal 1st District Court of Appeal

Docket No: F035605

Case Date: 03/21/2002

Preview:Filed 12/17/01

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA FIFTH APPELLATE DISTRICT GERAWAN FARMING, INC., et al., F035605 Plaintiffs and Appellants, v. CALIFORNIA TABLE GRAPE COMMISSION, (Super. Ct. No. 642546-6 & 636636-3)

OPINION
Defendant and Respondent.

APPEAL from a judgment of the Superior Court of Fresno County. Stephen J. Kane, Judge. Brian C. Leighton, Mayer, Brown & Platt, Michael W. McConnell and Sharon Swingle for Plaintiffs and Appellants.

SEE DISSENTING OPINION OF LEVY, J. Baker, Manock & Jensen, Robert D. Wilkinson, Kendall L. Manock, Linda Berg Othman; Bill Lockyer, Attorney General, Richard M. Frank, Chief Assistant Attorney General, Mary E. Hackenbracht, Assistant Attorney General, Walter E. Wunderlich, Edna Walz and Tracy L. Winsor for Defendant and Respondent. Kahn, Soares & Conway, George H. Soares, Dale A. Stern and Robert S. Hedrick for California Avocado Commission, California Apple Commission,

California Asparagus Commission, California Cut Flower Commission, California Date Commission, California Egg Commission, California Forest Products Commission, California Grape Rootstock Improvement Commission, California Kiwifruit Commission, Lake County Winegrape Growers Commission, LodiWoodbridge Winegrape Growers Commission, California Pepper Commission, California Pistachio Commission, California Rice Commission, California Sheep Commission, California Strawberry Commission, California Tomato Commission, California Walnut Commission, and California Wheat Commission as Amici Curiae on behalf of Defendant and Respondent. -ooOooIn Gerawan Farming, Inc. v. Lyons (Dec. 17, 2001, F031142) ___ Cal.App.4th ___, filed this day, we have held that the California Plum Marketing Program (the Program), authorized and established pursuant to the California Marketing Act of 1937, as amended, Food and Agriculture Code section 58601 et seq., unconstitutionally deprives objecting plum producers of their right to freedom of speech under article I, section 2, subdivision (a) of the California Constitution (hereafter article I), insofar as the Program assesses the objecting producers for advertising and other speech-related functions. Before us in the present case is a challenge to the similar advertising and speech-related activities of respondent California Table Grape Commission. Respondent's programs are not established pursuant to the California Marketing Act of 1937 but, instead, are authorized by the Ketchum Act, Food and Agriculture Code section 65500 et seq. We conclude that the Ketchum Act shares the constitutional infirmities of the California Marketing Act of 1937. Accordingly, we hold that objecting grape producers are entitled to withhold from the Table Grape Commission any amount assessed by it for use in advertising and other speech-related activities.

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Facts and Procedural History Appellants Delano Farms, Inc., and Gerawan Farming, Inc., filed separate actions seeking to prohibit respondent from compelling them to pay assessments for speech-related expenses of the Table Grape Commission. The complaints sought refunds of earlier assessments paid by appellants and, in the case of Gerawan's complaint, an order that respondent establish a mechanism for designating in advance the portion of funds that will be used for speech-related purposes. The complaints sought relief under various state and federal constitutional provisions, including article I. The trial court struck certain portions of the complaints and granted respondent's demurrers to the complaints without leave to amend. The court entered judgment for respondent in each of the actions. Thereafter, the trial court granted the parties' joint motion to consolidate the two cases for purposes of appeal. Appellants filed a timely notice of appeal. We ordered the present appeal coordinated with Gerawan Farming, Inc. v. Lyons, supra, ___ Cal.App.4th ___ for purposes of briefing and argument. As relevant here, both complaints alleged respondent engaged in a program of generic advertising with which appellants disagreed. In addition, the complaints alleged respondent used money generated from mandatory assessments to engage in lobbying and litigation to attain political and ideological goals. The complaints alleged each appellant had been assessed hundreds of thousands of dollars to support the speech-related activities of respondent. Discussion The activities of the Table Grape Commission are authorized by a different statutory scheme than those of the Plum Marketing Board. As alleged in the complaints in the present case, those activities are significantly more wide-ranging

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than the generic advertising program implemented by the Plum Marketing Board. The complaints allege respondent engages in political lobbying and politically motivated litigation, in addition to a more traditional program of generic marketing and advertising. In addition, the laws authorizing respondent's activities are buttressed by extensive and recent legislative findings concerning the importance of the table grape industry to the economic health of California and the physical health of Californians. (See Food & Agr. Code,

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