PEOPLE v. NIEMEYER (1986)

PART I

Jack Niemeyer and Niemeyer Farms, Inc. (hereinafter jointly referred to as appellant) appeal from a judgment of the superior court, sitting without a jury, which found appellant maintained a public nuisance on his Fulkerth and Crows Landing chicken ranches as defined in Civil Code section 3480.   The court held that the public nuisance at the two ranches was unlawful under Penal Code sections 370 and 373a and that this conduct constituted an unfair business practice in violation of Business and Professions Code section 17200.   Accordingly, on May 31, 1985, the court issued a permanent injunction prohibiting appellant from maintaining a public nuisance at the two ranches.   Upon the court's finding of an unfair business practice and the parties' stipulation, a civil penalty of $25,000 was assessed.   We will affirm.

Background and Facts

Appellant has operated chicken egg-producing ranches in the rural area of Stanislaus County for over 20 years.   At the time of trial he was operating three such ranches, the Fulkerth, Crows Landing and Ustick Ranches (the Ustick Ranch is not a subject of this appeal) in agriculturally zoned areas.   There are approximately 85,000 birds at the Fulkerth Ranch, and 170,000 at the Crows Landing Ranch.   The closest city to the Fulkerth Ranch was Modesto, eight to nine miles to the south.   The closest city to the Crows Landing Ranch was Ceres, five to six miles away.   One to two miles north and upwind to the Crows Landing Ranch was a subdivision.   There are some dairies and another chicken ranch in the general rural area in which the ranches are located.   One of appellant's contentions was that the flies and odors came from dairy farms, the other chicken ranch and animals owned by individuals.

There are two main species of flies that can cause problems.   One is called Fannia, or the little housefly, and the other Musca domestica, the common housefly.   The two flies differ in their flight habits:  Fannia hover during the day, while Musca normally alight during the day and may cause flyspecks.

Fannia is predominately a cool weather fly and does not breed extensively in hot weather.   Musca, by contrast, is a problem in the summer.

Over the years appellant has been embroiled with Stanislaus County governmental entities over alleged odors and flies emanating from his ranches.   Appellant contended that he had not had any fly problems for years.   In support of his position, appellant's witnesses, Ralph Ernst, and Jim Larsen, testified that on many other occasions they had been involved in similar situations where people insisted that a specific source was causing fly problems, but an investigation showed that it was not.   Robert Azevedo, the head of the Stanislaus County Health Department, was also aware of similar situations in the past concerning the source of odors.   Nevertheless, registered sanitarians with the Stanislaus County Department of Environmental Resources, acting in response to numerous citizen complaints regarding excessive flies and noxious odors, have visited appellant's ranches on numerous occasions over the years.

On May 23, 1983, the county health department received a petition signed by a number of neighbors regarding the Fulkerth facility.   Robert Azevedo then prepared and sent out a “Declaration of Public Nuisance” to appellant on June 15, 1983.   Experts from the state observed appellant's ranches in January and March of 1984.

In April, 1984, the Stanislaus County Department of Environmental Resources referred the matter to the district attorney's office, which subsequently filed the complaint herein on May 3, 1984.

PART II **

PART III **

Nonexistence of Nuisance at the Time of TrialPART IV **Inference that Others Were Affected By Flies and OdorsPART V **Substantial Evidence of Excessive Flies Caused By AppellantPART VI **Alleged Failure of Trial Court to Include In Its Statement of Decision Certain Controverted Issues Though Requested to Do SoPART VIIUnfair Competition Where Public Nuisance Does Not Result in Injury or Damage to a Competitor

 In addition to finding the existence of a public nuiscance which is unlawful under Penal Code sections 370 and 373a, the court found that appellant's conduct amounted to unfair competition pursuant to Business and Professions Code section 17200 ² and assessed a penalty in the sum of $25,000.   The court also expressly found that appellant's practices did not harm consumers or competitors.

Appellant contends that after the trial court expressly held that there was no injury to competitors or consumers, it was error for the trial court to then hold that because it had found appellant to be creating a public nuisance he was engaging in an unlawful business practice in violation of Business and Professions Code section 17200.   According to appellant's reasoning, in order to enjoin his operations as an “unfair business practice” under Business and Professions Code section 17200, the operations must be both unfair and anticompetitive, not just anything that is illegal.

The literal language of Business and Professions Code section 17200 prohibits several species of unfair competition, including “․ unfair competition shall mean and include unlawful ․ business practice․”  While the trial court found in this case that there was no injury to competitors or consumers, it also found that appellant's activities constituted a public nuisance in violation of Penal Code sections 370 and 373a.   By definition, the maintenance of a public nuisance in violation of the criminal law necessarily involves injury to the public.   It follows that when the court found no injury to competitors or consumers it necessarily meant in their capacity as competitors and consumers, not in their capacity as members of the public.   Assuming, therefore, that a showing of injury is required under Business and Professions Code section 17200, such injury to the public is present in this case.

It appears that the case law has construed Business and Professions Code section 17200 to not require injury to a competitor or consumer where an unlawful business practice is present.   Thus, in Committee on Children's Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 209, 197 Cal.Rptr. 783, 673 P.2d 660, the court stated:

“The term ‘unfair competition’ receives a broad definition.   A recent Court of Appeal decision summarized its breadth.  ‘Historically, the tort of unfair business competition required a competitive injury.   However, the language of section 17200 ․ “demonstrates a clear design to protect consumers as well as competitors by its final clause, permitting inter alia, any member of the public to sue on his own behalf or on behalf of the public generally.”   [Citation.]  Thus, section 17200 is not confined to anticompetitive business practice but is equally directed toward “ ‘the right of the public to protection from fraud and deceit.’ ”  [Citation.]  Furthermore, the section 17200 proscription of “unfair competition” is not restricted to deceptive or fraudulent conduct but extends to any unlawful business practice [citation].  The Legislature apparently intended to permit courts to enjoin ongoing wrongful business conduct in whatever context such activity might occur [citations].'  [Citation.]”

Similarly, in People v. E.W.A.P., Inc. (1980) 106 Cal.App.3d 315, 318–319, 165 Cal.Rptr. 73, the court said:

“Since the addition of the word ‘unlawful’ to the predecessor statute in 1963, this section has been liberally construed so as not to be limited to traditional anticompetitive practices.  [Citations.]  Our Supreme Court has stated that the purpose of the amendment was to ‘ “extend the meaning of unfair competition to anything that can properly be called a business practice and that at the same time is forbidden by law.” ’  [Citations.]

“The distribution or possession for distribution of obscene matter is unlawful under Penal Code section 311.2.   When such conduct is engaged in as a ‘business practice’ it comes within the meaning of section 17200.   The complaint in this case adequately alleges such conduct as a business practice.   It alleges that defendant E.W.A.P. is a corporation organized under the laws of California with a principal place of business at a designated address in Chatsworth.   Certain individual defendants are alleged to be officers of the corporation.   The complaint alleges that the defendants have engaged in ‘commercial’ distribution or possession for ‘commercial’ distribution of obscene matter over a period of approximately a year, and the complaint specifically describes the numerous films and magazines involved.   A business practice has been adequately alleged.  [Citations.]

“The Legislature has determined that trafficking in obscene matter is prohibited.   When engaged in as a business practice, it is an unlawful business practice.   It is not necessary for the People additionally to allege that it is anticompetitive or harmful to the consumer of such products.”  (Fn. omitted.)

(See also People v. McKale (1979) 25 Cal.3d 626, 159 Cal.Rptr. 811, 602 P.2d 731.)

Thus, if the conduct amounts to an unlawful business practice and is illegal, the provisions of Business and Professions Code section 17200 may be invoked without showing the conduct is harmful to consumers or competitors.

PART VIII

Unfair Business Practices

 Appellant contends that the method of disposing of the manure was not a business practice as defined in Business and Professions Code section 17200—that he is in the business of producing chicken eggs, not chicken manure.

“Whether any particular conduct is a business practice within the meaning of section 17200 is a question of fact dependent on the circumstances of each case.”  (People v. E.W.A.P., Inc., supra, 106 Cal.App.3d at pp. 320–321, 165 Cal.Rptr. 73.)   The trial court found that appellant's disposal of chicken manure was “one of the more substantial practices of the business.”

The language of Business and Professions Code section 17200 is to be interpreted broadly.  (Committee on Children's Television, Inc. v. General Foods Corp., supra, 35 Cal.3d at pp. 209–210, 197 Cal.Rptr. 783, 673 P.2d 660;  People v. McKale, supra, 25 Cal.3d at pp. 631–632, 159 Cal.Rptr. 811, 602 P.2d 731.)

In People v. James (1981) 122 Cal.App.3d 25, 177 Cal.Rptr. 110, the court found Business and Professions Code section 17200 applied where a liquor store owner with allotted parking stalls had entered into a kickback scheme with a towing company regarding the towing of vehicles from his parking places.   Obviously, a liquor store is primarily engaged in the business of selling liquor, not in the business of towing away parked vehicles.

In Bondanza v. Peninsula Hospital & Medical Center (1979) 23 Cal.3d 260, 152 Cal.Rptr. 446, 590 P.2d 22, the court found the defendant's method of collecting patients' fees was unlawful under Business and Professions Code section 17200 even though the hospital's primary purpose and business was supplying hospital services, not collecting fees.

In People v. Los Angeles Palm, Inc. (1981) 121 Cal.App.3d 25, 175 Cal.Rptr. 257, the court applied Business and Professions Code section 17200 to an employer who credited tips against calculations of employees' minimum wages.

Consistent with these precedents, it would be incongruous in the instant case to determine whether Business and Professions Code section 17200 applies by segregating appellant's egg-producing activities from his non-egg-producing activities.   Clearly, the production and management of chicken manure is a necessary byproduct of the operation of appellant's chicken ranches.   While appellant is not primarily engaged in the business of producing chicken manure, the latter is an integral and necessary business practice essential to the accomplishment of the primary business of producing eggs and therefore falls neatly within the purview of section 17200.

PART IX ***

Vagueness of Injunction

PART X ***Denial of Jury TrialPART XI ***Inadequate NoticePART XII ***Defense Under the Provisions of Health and Safety Code Section 2200, Subdivision (e)(1)(B)PART XIII ***Cumulative Errors

The judgment is affirmed.

Respondent to recover costs on appeal.

FOOTNOTES

FOOTNOTE.   See footnote *, ante.

2.   Business and Professions Code section 17200 provides as follows:“As used in this chapter, unfair competition shall mean and include unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising and any act prohibited by Chapter 1 (commencing with section 17500) of Part 3 of Division 7 of the Business and Professions Code.”

FOOTNOTE.   See footnote *, ante.

GEO. A. BROWN, Presiding Justice.

HAMLIN and BEST, JJ., concur.