JOHN R. POYNER, District Attorney
County of Colusa
JANE CRUE (State Bar No. 201022)
Deputy District Attorney
547 Market Street
Colusa, CA 95932
(530) 458-0548 FAX
Attorneys for Plaintiff, the People of the State of California
IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF COLUSA
PEOPLE OF THE STATE OF CALIFORNIA, Plaintiff
v. COLUSA MUSHROOM, INC., a California corporation; COLUSA INDUSTRIAL PROPERTIES, INC., a California corporation; and DOES 1-10, inclusive,
COMPLAINT FOR CIVIL PENALTIES, INJUNCTION AND OTHER RELIEF
Bus & Prof. Code §§ 17203, 17204, 17206
The People of the State of California, by and through JOHN R POYNER, District Attorney for the County of Colusa, by Deputy District Attorney JANE CRUE, allege as follows:
JURISDICTION AND VENUE
1. The authority of the District Attorney of Colusa County to bring this action on behalf of the People of the State of California is derived from the statutory laws of the State of California, specifically, Business and Professions Code sections 17203, 17204 and 17206, and Code of Civil Procedure section 731.
2. Defendants do business in the County of Colusa, State of California. The alleged violations of law hereinafter described have been carried out within said County and within the State of California. Unless enjoined and restrained by an order of this court, defendants will continue to retain the means to engage in unlawful action and practices and courses of conduct set out below.
3. Whenever in this Complaint reference is made to any act of Defendants, such allegation shall be deemed to mean that Defendants that it's officers, agents, employees, or representatives, did or authorized acts while actively engaged in the management, direction, or control of the affairs of said Defendant, and while acting within the course and scope of their duties.
4. Plaintiff is informed and believes and on that basis alleges that defendant Colusa Mushroom, Inc. is a California corporation, qualified to do business in the State of California, and, at all times relevant herein, was engaged in the business of mushroom production in Colusa County.
5. Plaintiff is informed and believes and on that basis alleges that defendant Colusa Industrial Properties, Inc. is a California corporation, qualified to do business in the State of California, and, at all times relevant herein, was engaged in the business of commercial and industrial development in Colusa County.
6. The true names and capacities of Defendants herein named as DOES 1 through 10 are unknown to Plaintiff, who therefore sues said Defendants by such fictitious names. Plaintiff will seek leave of court to amend this complaint to show their true names when the same have been ascertained.
7. The People of the State of California seek to prohibit Defendants from continuing to cause and allow nuisance odors from their facilities. Such odors constitute a public nuisance under both the Civil Code and in the common law of this state. Moreover, the People seek civil penalties and damages from Defendants for violations of the Business and Professions Code (pursuant to §§ 17200 -17209).
8. The People also seek injunctive relief requiring compliance with any and all applicable laws, regulations, and administrative orders.
9. Plaintiff is informed and believes and on that basis alleges that Colusa Mushroom Inc. is a commercial producer of mushrooms, including a producer and processor of compost.
10. Plaintiff is informed and believes and on that basis alleges that Colusa Industrial Properties, Inc. is the owner of an industrial park located in Colusa, California, wherein Colusa Mushroom Inc. maintains a processing facility.
11. Plaintiff is informed and believes and on that basis alleges that in October 2002, Defendant Colusa Mushroom, Inc. began construction on a new 400,000 square foot mushroom facility in the industrial park owned by Defendant Colusa Industrial Properties, Inc.
12. Plaintiff is informed and believes and on that basis alleges that in February 2003, Defendant Colusa Mushroom, Inc. began producing approximately 300 tons of compost per week at the facility.
13. Plaintiff is informed and believes and on that basis alleges that on numerous occasions, beginning in February 2003 and up to the present, nuisance odors from Defendant Colusa Mushroom, Inc.'s operation have been documented.
14. Plaintiff is informed and believes and on that basis alleges that beginning in February 2003 and up to the present the nuisance odors were brought to the attention of the Defendants on many occasions.
15. Plaintiff is informed and believes and on that basis alleges that initially, Defendant Colusa Mushroom Inc. intended to operate a closed loop wastewater system that would generate no wastewater from the composting operation. However, in July 2003 Defendants applied to the California Regional Water Quality Control Board for approval to discharge 5,000 gallons per day of wastewater to Defendant Colusa Industrial Properties, Inc.'s land disposal system under the current Waste Discharge Requirements permit. The application was denied and the Regional Board found that Defendant Colusa Industrial Properties, Inc. was in violation of their existing permit based on the finding that wastewater from the composting operation was collecting in a sump and causing nuisance odors.
16. Because the design or capacity of the composting and wastewater system at the facility is inadequate, and given the Defendants' past history of wastewater and odor discharges, it is highly likely that Defendants will continue to discharge wastewater and odors in violation of law. The People are entitled to a preliminary and permanent injunction restraining Defendants from continuing to operate the facility in a manner likely to result in further violations.
FIRST CAUSE OF ACTION
VIOLATION OF BUSINESS AND PROFESSIONS CODE SECTIONS 17200 - 17208 (UNLAWFUL AND/OR UNFAIR COMPETITION)
17. The allegations in paragraphs 1 through 16 are incorporated herein by reference.
18. Plaintiff is informed and believes and based on such information and belief alleges that beginning at an exact date that is unknown to plaintiff, but no later than four (4) years prior to the initiation of this action, Defendants have engaged in acts of unlawful and/or unfair competition prohibited by California Business and Professions Code sections 17200 -17208 by virtue of the acts described herein, each of which constitutes an unfair and/or unlawful business practice. These acts include, but are not limited to, the following:
19. Violations of Water Code section 13385, to wit, violation of waste discharge requirements prohibiting treatment or discharge of wastewater that causes a nuisance.
20. Violations of Civil Code sections 3479 and 3480, to wit, failure to abate a continuing public nuisance, as further described in the Second Cause of Action herein.
SECOND CAUSE OF ACTION
VIOLATION OF CIVIL CODE
SECTIONS 3479 AND 3480 (PUBLIC NUISANCE)
21. The allegations in paragraphs 1 through 20 are incorporated herein by reference.
22. A "nuisance" is defined in section 3479 of the California Civil Code as "[a]nything which is injurious to health, is indecent or offensive to the senses, or an obstruction to the free use of property, so as to interfere with the comfortable enjoyment of life or property."
23. A "public nuisance" is defined in section 3480 of the California Civil Code as a nuisance "which affects at the same time an entire community or neighborhood, or any considerable number of persons ...."
24. Pursuant to California Code of Civil Procedure section 3494, a public nuisance may be abated by any public body or officer authorized thereto by law. Pursuant to Code of Civil Procedure section 731, the Office of the District Attorney is authorized to abate public nuisances related to matters within its jurisdiction.
25. The operation of a composting facility without adequate wastewater treatment and/or odor containment inevitably results in the discharge of nuisance odors into the air and prohibits the enjoyment of our natural resources by the citizens of California, and constitutes a continuing nuisance to the surrounding environs pursuant to sections 3479 and 3480 of the California Civil Code.
26. The inadequate design and maintenance of Defendants' facility constitutes a condition which is harmful to the environment.
27. Defendants will, unless restrained and enjoined by this Court, continue to maintain the public nuisance and the acts complained of herein, which will continue to pose a threat to the environment.
28. Unless and until Defendants are restrained by order of this Court, it will be necessary for the District Attorney to commence successive actions against Defendants after each odor discharge to secure remediation for the damages to the environment that will be sustained, thus requiring a multiplicity of suits.
29. The People have no plain, speedy, or adequate remedy at law to address the public nuisance. Injunctive relief is expressly authorized pursuant to California Civil Code section 526. The People are entitled to an order requiring Defendants to undertake any additional work necessary to abate the public nuisance. Such must be performed in conformance with applicable law and under the supervision of all appropriate regulatory authorities, including, but not limited to, the California Regional Water Quality Control Board, Central Valley Region (the "RWQCB") and the California Integrated Waste Management Board (the "CIWMB").
WHEREFORE, Plaintiff prays for judgment as follows:
1. Defendants be permanently restrained and enjoined from engaging in or performing, directly or indirectly, any of the following acts:
I. Engaging in any of the unlawful acts of unfair competition set forth in the First Cause of Action of this complaint, as well as any other violations of Business and Professions Code section 17203,17204, and 17206; and
2. Defendants herein be assessed a civil penalty of TWENTY-FIVE HUNDRED ($2,500.00) for each act of unfair competition, in an amount according to proof, pursuant to Business and Profession Code section 17206.
3. Defendants be disgorged of any profits received from the unlawful, unfair or fraudulent act(s).
4. Plaintiff recovers its costs.
Plaintiff has such other and further relief as the nature of the case may require and that the court deems proper to fully dissipate the effects of the unlawful acts complained of herein.
Dated this 24th day of January, 2005, at Colusa, California
JOHN R. POYNER District Attorney,
Deputy District Attorney