QUESADA v. HERB THYME FARMS

Appellant’s Reply to Supplemental Brief

Cal.January 30, 2015

CASE No. 8216305 IN THE SUPREME COURT OF CALIFORNIA MICHELLE QUESADA, Plaintiff-Petitioner and Appellant, Vv. SUPREME COURT HERB THYMEFARMS,INC., re i A. f rm Defendant and Respondent. JAN 30 2015 After a Decision of the Frank A. MeGuire * Second District Court of Appeal, Division Thr - Guire Clerk On Appeal From the Los Angeles Superior Court Deputy Case No. BC436557 Honorable Carl West (subsequently transferred to Honorable Kenneth Freeman) PETITIONER’S RESPONSE TO RESPONDENT’S SUPPLEMENTAL BRIEF REGARDING NEW AUTHORITY BOUCHER LLP WHATLEY KALLAS, LLC RaymondP. Boucher (SBN 115364) Alan M. Mansfield (SBN 125998) Maria L. Weitz (SBN 268100) 10200 Willow Creek Road, Suite 160 21600 Oxnard Street, Suite 600 San Diego, CA 92131 WoodlandHills, CA 91367 Telephone: 619-308-5034 Telephone: 818-340-5400 Facsimile: 855-274-1888 Facsimile: 818-340-5401 PUBLIC JUSTICE,P.C. JOHNSON & JOHNSON LLP Leslie A. Brueckner (SBN 140968) Neville Johnson (SBN 66329) 555 12th Street, Ste. 1230 439 N. Canon Drive, Suite 200 Oakland, CA 94607 Beverly Hills, CA 90210 Telephone: 510-622-8205 Telephone: 310-975-1080 Facsimile: 510-622-8155 Facsimile: 310-975-1095 Counselfor Plaintifj-Petitioner and Appellant, MICHELLE QUESADA CASE NO. 8216305 IN THE SUPREME COURT OF CALIFORNIA MICHELLE QUESADA, Plaintiff-Petitioner andAppellant, HERB THYMEFARMS,INC., Defendant and Respondent. After a Decision of the Second District Court of Appeal, Division Three On Appeal From the Los Angeles Superior Court Case No. BC436557 Honorable Carl West (subsequently transferred to Honorable Kenneth Freeman) PETITIONER’S RESPONSE TO RESPONDENT’S SUPPLEMENTALBRIEF REGARDING NEW AUTHORITY BOUCHER LLP Raymond P. Boucher (SBN 115364) Maria L. Weitz (SBN 268100) 21600 OxnardStreet, Suite 600 Woodland Hills, CA 91367 Telephone: 818-340-5400 Facsimile: 818-340-5401 PUBLIC JUSTICE,P.C. Leslie A. Brueckner (SBN 140968) 555 12th Street, Ste. 1230 Oakland, CA 94607 Telephone: 510-622-8205 Facsimile: 510-622-8155 WHATLEY KALLAS, LLC Alan M. Mansfield (SBN 125998) 10200 Willow Creek Road, Suite 160 San Diego, CA 92131 Telephone: 619-308-5034 Facsimile: 855-274-1888 JOHNSON & JOHNSON LLP Neville Johnson (SBN 66329) 439 N. Canon Drive, Suite 200 Beverly Hills, CA 90210 Telephone: 310-975-1080 Facsimile: 310-975-1095 Counselfor Plaintiff-Petitioner andAppellant, MICHELLE QUESADA In Respondent’s Supplemental Brief Regarding New Authority, Respondent Herb Thyme Farms, Inc. argues that Solus Industrial Innovations, LLC vy. Superior Court (2014) 229 Cal.App.4th 1291 supports a finding of preemption in this case. Appellant Michelle Quesada submits this response to briefly explain why So/us does not support Herb Thyme’s arguments. The question in So/us was whether the federal Occupational Safety and Health Act (“OSHA”) preempts state-law claims brought by a state district attorney under the Unfair Competition Law (“UCL”), Business and Professions Code §§ 17200 et seq. The district attorney’s UCL claims were premised on alleged misconduct within the ambit of a state-law workplace safety plan that had been developed and federally approved under OSHA. The district attorney argued that an employer should be required to pay civil penalties under the UCL for violating various provisions of the federally approvedplan. The Court of Appeal found that OSHA expressly preempts the district attorney’s UCL claims on the ground that theUCL’s civil penalties were not part of the federally approved workplace safety plan. More specifically, the court found that: (1) because the district attorney was attempting to use the UCL to enforce the state’s federally approved workplace plan; and (2) because the UCL was not an approved component of that plan; then (3) the district attorney’s claims were expressly preempted by OSHA. Contrary to Herb Thyme’s argument, So/us does not support a finding of preemption in this case. First, the Solus court began its preemption assessment with the observation that the UCL was enacted years afier Congress passed OSHAand years afier California’s workplace safety plan received federal approval. (Solus, supra, 229 Cal.App.4th at pp. 1302-1303.) Moreover, in Solus, there was no record that the UCL’s predecessor statute had ever been relied upon by prosecutors to penalize workplace safety violations. (/bid.) In sharp contrast, the legislative history of the Organic Foods Production Act of 1990 (‘OFPA”) (7 U.S.C. §§ 6501 et seq.), and the preamble to the final OFPA regulations (65 Fed.Reg. at 80663, 80668), acknowledge a lengthy history (and contemplate continued use) of state consumer fraud actions like Ms. Quesada’s. (See Petitioner’s Opening Brief on the Merits, at pp. 6-9, 21-22; Petitioner’s Reply Brief on the Merits, at pp. 18-21.) This long, recognized history of private enforcement—a history not present in So/us—is a substantial factor weighing against preemption of Ms. Quesada’s claims. (Bates v. Dow AgroSciences LLC (2005) 544 US. 431, 449). Second, unlike in Solus, Ms. Quesada is not using the UCL to enforce a federally approved state plan. As explained at length in Petitioner’s Reply Brief on the Merits (at pp. 2-6), OFPA merely prohibits the states from establishing their own “organic certification programs” without federal approval. (See 7 U.S.C. §§ 6503, 6507.) The OSHAstatute at issue in Solus, however, broadly required federal approval of any state program establishing or enforcing any safety standards involving the workplace. Under OFPA, the only type of state program that needs approval is one that governs the narrow area of organic certification. Asa result, the only state enforcement mechanisms that even arguably must be approved as part of the state organic certification program are those that relate to “organic certification.“ Herb Thyme cannot rely on Solus because Ms. Quesada is not attempting to enforce the state organic certification program. As previously explained (see Petitioner’s Reply Brief on the Merits at pp. 10-12), Ms. Quesadais not arguing that Herb Thyme’s certification was issued in error; nor is she attempting to enforce the state’s certified organic program by arguing that that Herb Thyme’s certification should be revoked. To the contrary, she is simply attempting to hold Herb Thyme liable understate consumer protection laws for covertly mixing its organic herbs with conventional herbs and then labeling the contents 100% organic. In the wake of a jury verdict in Quesada’s favor, Herb Thyme would remain free to produce and market its organic product as “Fresh Organic“ pursuant to its organic certification (unless, of course, the government ifse/ftook action to revoke that certification). In short, because this action does not seek to enforce the state organic certification program, the fact that the state’s program does not specifically incorporate the UCL as an enforcement mechanism is simply irrelevant. So/us, therefore, has no bearing here. DATED:January 29, 2015 Respectfully submitted, BOUCHER LLP RAY E-BOUCHER MARIAS WEITZ WHATLEY KALLAS, LLC Alan M. Mansfield PUBLIC JUSTICE,P.C. Leslie A. Brueckner JOHNSON & JOHNSON LLP Neville Johnson Counselfor Plaintiff-Petitioner and Appellant, MICHELLE QUESADA PROOF OF SERVICE STATE OF CALIFORNIA, COUNTY OF LOS ANGELES At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Los Angeles, State of California. My business address is 21600 Oxnard Street, Suite 600, Woodland Hills, California 91367. On January 29, 2015, I served true copies of the followin document(s) described as PETITIONER’S RESPONSE’ T RESPONDENT’S SUPPLEMENTAL BRIEF REGARDING NEW AUTHORITYonthe interested parties in this action as follows: SEE ATTACHED SERVICE LIST __. BY OVERNIGHT DELIVERY:I enclosed the documents in an envelope or package provided by an overnight delivery carrier and addressed to the persons at the addresses listed in the Service List and placed the envelope or package for collection and overnight delivery at an office or a regularly utilized drop box of the overnight delivery carrier. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on January 29, 2015, at Woodla ills, California. WE andra Haro SERVICE LIST Neville Johnson, Esq. JOHNSON & JOHNSON LLP 439 N. Canon Drive, Suite 200 Beverly Hills, CA 90210 Tel: 310-975-1080 Fax: 310-975-1095 Email: njohnson@jjllplaw.com I Copy Alan M. Mansfield, Esq. WHATLEY KALLAS, LLC 10200 Willow Creek Road Suite 160 San Diego, CA 92131 Tel: 619-308-5034 Fax: 855-274-1888 Email: alan@clgca.com I Copy Leslie A. Brueckner PUBLIC JUSTICE,P.C. 555 Twelfth Street, Ste. 1230 Oakland, CA 94607 Tel: 510-622-8205 Fax: 510-622-8155 Email: Ibrueckner@publicjustice.net I Copy Appellate Coordinator Office of the Attorney General Consumer Law Section 300 South Spring Street Los Angeles, CA 90013-1230 I Copy Mark D. Kemple, Esq. GREENBERG & TRAURIG, LLP 1840 Century Park East, 19" Floor Los Angeles, CA 90067 Tel: 310-586-7700 Fax: 310-586-7800 Email: kemplem@gtlaw.com I Copy Angela L. Diesch, Esq. GREENBERG TRAURIG, LLP 1201 K Street, Suite 1100 Sacramento, CA 95814 Tel: 916-442-1111 Fax: 916-448-1709 Email: diescha@gtlaw.com I Copy Hon. Kenneth R. Freeman Los Angeles Superior Court Central Civil West District Department 322 600 S. Commonwealth Avenue Los Angeles, CA 90005 I Copy F. Paul Bland,Jr. PUBLIC JUSTICE,P.C. 1825 K Street, NW Suite 200 Washington, D.C. 20006 Tel: 202-797-8600 Fax: 202-232-7203 Email: pbland@publicjustice.net I Copy