1 

Filed 9/25/14 Felix Costa & Sons v. Ross CA3 

NOT TO BE PUBLISHED 

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication 

or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA 

THIRD APPELLATE DISTRICT 

(Sacramento) 

---- 

FELIX COSTA & SONS, etc. et al., 

 Plaintiffs and Appellants, 

 v. 

KAREN ROSS, as Secretary, etc., 

 Defendant and Respondent. 

C069389 

(Super. Ct. No. 03AS03433) 

 This case presents an equal protection challenge to the California Cherry 

Marketing Program (Cherry Marketing Program or Program), established in 1993 

pursuant to the California Marketing Act of 1937 (CMA) (Food & Agr. Code, § 58601 

et seq.).1 The Program requires packers and growers of four varieties of cherry (Bing, 

Van, Lambert, and Rainier) to pay an assessment to fund research and marketing efforts 

 

1 Undesignated statutory references are to the Food and Agriculture Code. 
2 

designed to benefit the assessed varieties. Plaintiffs Felix Costa & Sons, Felix Costa, and 

a partnership comprised of Felix Costa, Greg Costa, and Jane Armstrong (the Costas) 

sued Karen Ross, in her official capacity as Secretary (Secretary) of the California 

Department of Food and Agriculture (Department), alleging the Program violates their 

right to equal protection under the law and further alleging the Secretary failed in the 

statutory duty to ensure uniformity in the inspection of cherries. Judgment was entered in 

favor of the Secretary after the trial court granted the Secretary’s motion for summary 

judgment and denied the Costas’ motion to amend the complaint to assert an additional 

cause of action alleging the creation of the Program was not a valid exercise of the state’s 

police power. 

 On appeal, the Costas assert: (1) the trial court abused its discretion in depriving 

the Costas of the opportunity to amend the complaint to assert the police power claim; 

and (2) the trial court erred in granting the Secretary’s summary judgment motion with 

respect to the equal protection and inspection claims. We affirm the judgment. As we 

explain, the trial court did not abuse its discretion in denying the Costas’ motion to 

amend the complaint. The Costas’ unwarranted delay in proposing an amendment 

that would interject a new issue requiring new discovery provides ample justification for 

denial of the motion. Nor did the trial court err in granting the Secretary’s summary 

judgment motion. With respect to the Costas’ equal protection claim, as a matter of 

law, growers and packers of assessed and non-assessed varieties of cherry are not 

similarly situated for purposes of the Cherry Marketing Program. With respect to the 

inspection claim, there is no factual dispute concerning the manner in which the 

Secretary enforces the standards found in the California Code of Regulations (CCR), i.e., 

through a spot inspection program. We conclude the use of spot inspections to enforce 
3 

the standards does not violate the Secretary’s obligation to ensure uniformity in 

inspections. 

BACKGROUND 

California Marketing Act of 1937 

 The CMA “constitutes a legislative entrustment of the power to regulate the 

marketing of agricultural commodities to those who produce or otherwise deal with such 

products, subject to the approval of the [Secretary]. [Citation.] It grew out of the 

chaotic conditions which characterized California agriculture during the early part of 

the twentieth century. [Citation.] Before the promulgation of the CMA, each of 

California’s many fruit and vegetable growers attempted to be the first in the market with 

his or her commodity, in order to take advantage of the premium prices paid on early 

shipments. This led to the marketing of inadequately ripened produce, and the glutting of 

the market during the peak season with poor quality commodities. Deceptive packaging, 

improper sampling, and false grading were often resorted to in order to attempt to 

enhance the attractiveness of the produce. This ‘unregulated scramble’ had an ‘adverse 

effect upon consumer acceptance of California fruits and vegetables,’ and the unstable 

and fluctuating markets ‘had an exaggerated impact on the livelihood of’ the state’s 

agricultural producers. [Citation.] The depression of 1929–1933 only exacerbated these 

problems; the prices paid to growers ‘plummeted.’ [Citation.]” (Voss v. Superior Court

(1996) 46 Cal.App.4th 900, 907.) Similar concerns prompted the United States Congress 

to enact the Agricultural Marketing Agreement Act of 1937 (AMAA). (June 3, 1937, 

ch. 296, 50 Stat. 246 et seq., as amended, codified at 7 U.S.C. § 601 et seq.) (Gerawan 

Farming, Inc. v. Lyons (2000) 24 Cal.4th 468, 476 (Gerawan I).) 

 Like its federal counterpart, “the CMA declared, as one of the Legislature’s 

policies, the establishing and maintaining of orderly marketing conditions for agricultural 
4 

commodities in order to raise and support prices for their producers.” (Gerawan I, supra, 

24 Cal.4th at p. 478.) Also like the AMAA, “the CMA authorized the [Secretary] to issue 

‘marketing orders,’ i.e., regulations governing marketing matters for the producers and 

handlers of agricultural commodities, which did the following: provided for participation 

in the administration of such orders by the regulated producers and handlers themselves; 

substantially restricted the terms of such orders generally to, among others, the 

determination of the existence and extent of any surplus, the limitation on total quantity 

marketed, the allotment of amounts for purchase, the allotment of amounts for marketing, 

the regulation of periods for marketing, the establishment of reserve pools, the institution 

of grading and standards, and, impliedly, the conduct of research; and mandated that the 

regulated producers and handlers had to contribute funds to cover related expenses. It 

contained provisions relating to the termination of such orders, their coming into effect, 

and, impliedly, the conduct of referenda. In light of features of this sort, the mechanism 

of regulation that such an order sets up is, essentially, self-regulation by the regulated 

producers and handlers themselves. [Citation.]” (Id. at pp. 478-479.) However, “unlike 

the AMAA, the CMA authorized the [Secretary] to impose, among the terms of such a 

marketing order, the establishment of ‘plans for advertising and sales promotion to create 

new or larger markets for agricultural commodities,’ specifically, plans that are ‘directed 

toward increasing the sale of such commodity without reference to a particular brand,’ 

etc. (Stats. 1937, ch. 404, § 1, pp. 1335–1336.) It mandated that the regulated producers 

and handlers subject to a marketing order with such a term had to contribute funds to 

cover related expenses.” (Ibid.) 

California Cherry Marketing Program 

 In 1993, the Secretary of Food and Agriculture was approached by the San 

Joaquin Valley Cherry Shippers Association concerning issuance of a marketing order for 
5 

cherries. At the time, proponents of the order were concerned about the continuing 

profitability of the cherry industry. As Glenn E. Yost, Senior Agricultural Economist 

with the Department’s marketing branch, explained: “In the past, cherries, being the 

perishable commodity that they are, could not be shipped out of the area where they were 

produced. With the advances that have been made in the past ten plus years in 

postharvest handling and cold storage, a much larger market area is now possible. 

California cherries are now shipped in refrigerated vans, to all major markets in the 

United States. They are also shipped, mainly by air, to European countries and to the 

Pacific Rim. Japan alone takes about 35 percent of the California cherry crop. The 

industry is operating profitably at this point. However, the industry’s prosperity has 

prompted new cherry plantings. It is possible that California production could double 

within the next five years. The industry feels that it must promote and establish larger 

markets for this increased volume.” The proposed order would create an advisory board 

(Cherry Board) with authority to engage in the activities of sales promotion, market 

development, and general research for cherries of the Bing, Van, Lambert, and Rainier 

varieties. It would also impose an assessment on packers of these four varieties in order 

to fund the Cherry Board’s promotional and research activities. 

 Pursuant to the CMA, a public hearing concerning the proposed order was held on 

March 8, 1993. (See §§ 58771, 58782.) About 30 growers, packers, and/or shippers of 

cherries were in attendance. All testifying attendees, including Greg Costa, partner of 

Felix Costa & Sons, were in favor of the proposed order. With respect to limiting the 

proposed order to the four varieties specified above, Bob Chinchiolo, of the Chinchiolo 

Fruit Company, testified: “The intent of the [Cherry Marketing Program] is to promote 

only bings, vans, lamberts, and rainiers cherries. And the reason for making these 

distinctions are as follows: The bing is . . . the primary cherry in California. It makes up 
6 

and represents about 90 percent of all the cherry shipments out of California. [¶] And 

due to climatic conditions, the bing cherry is grown north of Modesto in the San Joaquin 

Valley, and in the coastal regions of Gilroy and Hollister, Morgan Hill, and Santa Clara. 

[¶] And the proponents feel that the bing cherry faces the greatest marketing challenges 

ahead, and it is the intent of the [Cherry Marketing Program] to base their promotional 

funds on the bing cherry primarily, at least initially. [¶] The vans, and the lamberts, and 

the rainiers, the other three varieties are much smaller in sales volume, but they were 

included because these varieties are also being shipped to Japan, and this makes the 

promotional programs simplified because now we can promote in Japan for those four 

varieties.” At the time, these were the only varieties of cherry accepted by Japan for 

import into that country. These varieties also ripened later than varieties not included in 

the proposed marketing order. 

 Following the public hearing, in accordance with the CMA, the Secretary found 

the proposed marketing order to be “reasonably calculated to attain the objectives which 

are sought in such Marketing Order,” that it was “in conformity with the provisions of the 

[CMA] and within the applicable limitations and restrictions which are set forth in said 

Act and will tend to effectuate the declared purposes and policies of said Act,” and “[t]he 

interests of consumers of California cherries are protected in that the powers of said Act 

are being exercised only to the extent which is necessary to obtain such objectives.” (See 

§ 58813.) The Secretary then held a referendum of packers affected by the proposed 

order, a supermajority of whom voted in favor. (See § 58991.) The Cherry Marketing 

Program, became effective April 27, 1993. It was amended later that year, also by 

referendum, to include growers of the assessed varieties. 
7 

Continuation Hearings 

 The Cherry Marketing Program expressly provided for a public hearing in 1997 

“to determine whether the Program is effectuating the purposes and provisions of the 

[CMA],” with additional public hearings to be held every five years in accordance with 

section 59086.2 At the March 19, 1997, public hearing, about 20 growers, packers, 

and/or shippers of cherries were in attendance. All testifying attendees were in favor of 

continuing the Program. After finding “a substantial question does not exist as to 

whether the Program is meeting the declared purposes of the [CMA],” the Secretary, 

acting through the chief of the marketing branch, approved the continuation of the 

Program without holding a referendum. 

 The second public hearing on continuation of the Cherry Marketing Program was 

held on March 11, 2002. All testifying attendees were in favor of continuing the 

Program. Greg Costa, while generally in favor of continuing the Program, objected to the 

following sentence contained in article III, section B: “In carrying out the provisions of 

 

2 Section 59086 provides: “A marketing order shall not be submitted for reapproval 

until one year after the original enactment, or within one year of any prior approval. 

However, if no provision is made in any marketing order for reapproval or for 

termination in less than five years, the director shall at least once each five years hold a 

hearing, duly noticed and held in accordance with the provisions of this chapter. If the 

director finds after the hearing that a substantial question exists as to whether such 

marketing order is contrary to, or does not effectuate the declared purposes or provisions 

of this chapter within the standards and subject to the limitations and restrictions which 

are imposed in this chapter, such marketing order shall be submitted for reapproval. The 

vote for reapproval shall be the same as used for original approval of a marketing order. 

The director shall determine whether such approval shall be by assent or referendum. An 

amendment to a marketing order which extends the term thereof shall be deemed a 

reapproval of the marketing order. A marketing order which within five years prior to the 

effective date of this act has been amended to fix or extend its term shall be deemed to 

have been duly reapproved.” 
8 

this Marketing Program, the Advisory Board will not be empowered to enact any form of 

quality and/or grade standards.” He explained: “I just wanted to begin by saying that we 

at Felix Costa & Sons, are in favor of the Cherry Marketing Program or a body such as 

the [Cherry Board]. [¶] We feel very strongly that the present [Cherry Board] has done a 

good job of representing the industry’s interests and concerns. They’ve done a good job 

in research and they’ve done a good job in marketing and promotion. [¶] We do, 

however, strongly oppose [the Department] authorizing the program to continue another 

five years in its present form, without having the issue brought to a vote.” 

 Turning to his opposition to the above-quoted language, Greg Costa explained: 

“Felix Costa & Sons, and other packers that submit their entire production to a shipping 

point, continuous inspection program, and only produce and ship fruit in compliance with 

[the CCR], we are basically forced to support the marketing of fruit that does not always 

meet [the regulations] and to support packers who have produced this fruit that is not in 

. . . compliance.” He continued: “[T]he existing program . . . does not allow the cherry 

industry to address and utilize the most powerful tool in moving the crop and improving 

the average returns to all growers that we have, and that is a mandatory minimum quality 

standard.” Citing an article in “Good Fruit Grower,” Greg Costa argued: “The research 

supports the fact that consistent predictable quality is even more important than 

promotion. And I’m required under law to pay money for the promotion of this product, 

and I find it hard to accept that there are people who feel it’s okay to force me to pay 

money to promote product, and yet they will not obey the law.” Finally, noting 

“disagreement within the industry” on the grade issue, he requested a vote on 

continuation of the Program and stated: “It would actually be our desire that the entire 

[Cherry Marketing Program] as it presently exists, be enacted with the exception of that 

one sentence [in article III, section B].” 
9 

 In a hearing report issued by the Department, the author elaborated on the 

disagreement within the industry concerning grade and quality standards: “[T]he 

marketing order document pertaining to the [Cherry Marketing Program] currently 

prohibits the Program from engaging in grade and quality standards. Apparently when 

the Program was being implemented, the need for promotion and research efforts were of 

great importance to the industry. However, grade and quality standards were authorities 

the industry could not agree to incorporate into the program. Therefore, a prohibition on 

grade and quality standards was incorporated into the Program, so the industry could 

move forth unhampered with what it could agree to do, which is promotion and research. 

[¶] Though there is a prohibition in the Program, there are grade standards for cherries, 

under the [CCR]. According to testimony there is a problem with enforcement of [the 

regulations] for cherries at the State and county levels. It was felt by one grower-packer 

that the lack of enforcement of the [regulations] for cherries could hinder [the] Program’s 

promotion efforts in all markets. [¶] The issue of incorporating grade and quality 

standards into the Program has been brought up among the [Cherry Board] members at 

various times throughout the life of the Program. Discussion first arose in the fall of 

1996 and then again in the fall of 2000. At those times, the [Cherry Board] determined 

not to deal with the grading issue. However, at its meeting on March 14, 2002, the 

[Cherry Board] took action to place the topic of major [amendment to] the Program to 

include grade and quality standards authority within the Program on its next meeting 

agenda. The [Cherry] Board also submitted this action for inclusion into the hearing 

record.” 

 The hearing report continued: “There is no industry consensus on this issue. The 

following summarizes the industry’s testimony as it relates to incorporation of grade 

standards and continuation of the Program: [¶] Some industry members indicated that 
10 

they are strictly opposed to incorporating grade standards into the Program and feel the 

Program should continue as is. [¶] There is also support for incorporating grade 

standards into the Program by some industry members, though a majority of those 

supporters for quality standard[s] feel the continuation of the Program should not be 

jeopardized over this issue. Most feel the major amendment process is a means to 

effectively deal with this issue. [¶] Many industry witnesses who did not indicate their 

preference for incorporating grade standards into the Program, did however, express that 

the issue should be dealt with separately from the continuation process.” 

 The Secretary, acting through the chief of the marketing branch, approved 

continuation of the program without holding a referendum, finding no “substantial 

question exists as to whether the [Program] is contrary to or does not tend to effectuate 

the declared purposes or provisions of the [CMA] within the standards and subject to the 

limitations and restrictions which are imposed in the [CMA].” 

 The third public hearing on continuation of the Cherry Marketing Program was 

held on January 17, 2007. At this hearing, of the twelve industry members providing 

testimony, seven supported continuation, three opposed, one provided mixed testimony, 

and one took no position on whether the Program should continue. In addition to arguing 

the Program should not continue unless amended to include grade and quality standards, 

Greg Costa (along with his employee, Rich Handel, and two others) argued: “The 

activities that the [P]rogram performs benefit the whole cherry industry, however, only 

four varieties are assessed. The assessed varieties represent only 65% of the industry, but 

carry the whole burden of paying assessments. This is unfair and therefore, the Program 

should not continue in its current form.” 

 Finding the hearing record to be insufficient to determine whether there was a 

substantial question as to whether the Program was effectuating the purposes of the 
11 

CMA, the Secretary held a referendum of growers and packers, a supermajority of whom 

voted in favor of continuing the Program in its current form. Based on this referendum, 

the Secretary continued the Program for another five years. 

Original Complaint and Stay of Proceedings 

 On June 20, 2003, between the second and third continuation orders, the Costas 

sued the Secretary alleging payment of the assessment to fund the Cherry Board’s 

promotional activities violated their free speech and free association rights under the state 

and federal Constitutions. At the time, Gerawan Farming, Inc. v. Kawamura (2004) 33 

Cal.4th 1 (Gerawan II), involving the proper test to be used in determining whether a 

particular marketing order compelling funding of a generic advertising program violates 

the free speech clause of the California Constitution, was pending before the California 

Supreme Court. Because of this, the parties stipulated to having the case stayed pending 

resolution of the issue by our Supreme Court. Following issuance of the Gerawan II

decision, the parties stipulated to continuation of the stay while the United States 

Supreme Court decided Johanns v. Livestock Marketing Assn. (2005) 544 U.S. 550 [161 

L.Ed.2d 896] (Johanns), involving whether the generic advertising at issue there was the 

Government’s own speech, and therefore exempt from First Amendment scrutiny. 

Ultimately, the Supreme Court held that is was. (Id. at pp. 560-567.) The case was 

further stayed pending resolution of Gallo Cattle Co. v. Kawamura (2008) 159 

Cal.App.4th 948 (Kawamura), in which we applied the reasoning of Johanns to uphold 

milk producer assessments for generic milk advertising against a challenge under the free 

speech clause of our state Constitution. (Id. at p. 951.) The stay was lifted February 3, 

2010. 
12 

First Amended Complaint 

 On July 12, 2010, the Costas filed an amended complaint reasserting the free 

speech causes of action and adding two additional causes of action. The first of the new 

claims alleged the Cherry Marketing Program violated the Costas’s right to equal 

protection under the law. Specifically, the Costas alleged: “Between 30% and 40% of all 

fresh cherries produced, packed and marketed from cherry orchards in California are not 

subject to the Cherry Marketing [Program]. However, those varieties compete in the 

market place, and compete in and around the same time that the four ‘regulated’ and 

assessed varieties are harvested, yet those varieties are not subject to assessments of the 

Cherry Board. In addition, [the Costas] allege that the Cherry Board’s advertising, 

promotion and marketing indicates to the public to simply buy California cherries, that 

they are healthy, nutritious, now being sold, and worthy of the consumer’s attention and 

expenditures, which discriminates against those like [the Costas] who produce and ship 

assessed varieties. [¶] . . . [The Costas] contend that leaving the vast majority of cherries 

unregulated as to assessments, but equally applauded and promoted by the Cherry Board 

in its advertising and promotion, violates [the Costas]’ equal protection rights, because 

the Cherry Marketing [Program] is arbitrary, capricious and discriminatory.” 

 The second of the new claims alleged the Secretary failed in the statutory duty to 

ensure uniformity in the inspection of cherries. Specifically, the Costas alleged: 

“Pursuant to [sections] 42651 through 42683[,] the Secretary . . . is required to [e]nsure 

uniformity in inspections, and that any local, county, or other inspectors employed to 

perform inspections regarding the grades and standards for California cherries, the 

Secretary is required to order them to uniformly apply the [CCR] standards for cherries. 

[The Costas] allege that there is no uniformity in the inspections, that cherries that would 

fail at [the Costas]’ packing facility, are passed at competitor’s facilities, that [the Costas] 
13 

have routinely complained to the Secretary about this lack of enforcement, and the 

Secretary has refused to enforce the . . . regulations uniformly.” 

Standardization and Shipping Point Inspection Programs 

 To place the Costas’ inspection claim in context, we briefly describe the 

Department’s commodity inspection programs: (1) the standardization program; and 

(2) the shipping point inspection (SPI) program. These programs are not part of the 

Cherry Marketing Program. 

 The standardization program “is responsible for the enforcement and maintenance 

of minimum standards for quality, maturity, container, marking size, and packing 

requirements. The goals of the Program are to remove substandard agricultural products 

from the channels of trade, to assure consumers that they are purchasing commodities at a 

level of acceptable quality, and to protect and promote the fruit, nut, vegetable and honey 

industries of California. The Program also promulgates and processes regulations 

concerning standardization of quality, maturity, containers, labeling and packing 

requirements.” The standardization program “is currently enforced through a spot 

inspection program” carried out by both state and county inspectors. County inspectors 

“conduct the vast majority of these inspections” and are licensed through the Department. 

Seasonal inspectors may also be employed by the counties and must pass a “commodity 

specific” training course. 

 The SPI program “provide[s] inspection services for higher voluntary quality 

standards, such as the USDA’s quality standards for cherries. Commodity packers who 

wish to document that their products meet these higher standards will hire SPI to be 

present w[h]ile the products are packed and to grade the products according to the 

standards that the packer is trying to meet. Because the role of SPI is to enforce these 

higher voluntary standards, SPI does not have authority to issue notices of 
14 

noncompliance” with CCR standards. However, “SPI can provide information to the 

county officials [enforcing the standardization program] who could then take regulatory 

action when applicable. Accordingly, SPI, Standardization and the County Agricultural 

Commissions have entered into MOUs providing that SPI will call the local county 

inspector if it sees a potential problem.” 

Summary Adjudication Motion

 On October 5, 2010, the Secretary filed a motion for summary adjudication of the 

Costas’ free speech claims relying on Johanns, supra, 544 U.S. 550, Kawamura, supra, 

159 Cal.App.4th 948, and similar decisions from the United States Court of Appeals for 

the Ninth Circuit. The Costas opposed the motion, arguing the Cherry Marketing 

Program was distinguishable from the advertising programs at issue in the cases relied 

upon by the Secretary because “none of the programs were attacked therein as beyond the 

‘police power’ of the Legislature or Congress.” Thus, for the first time in opposition to 

the Secretary’s motion for summary adjudication, the Costas claimed the Cherry 

Marketing Program was an unconstitutional exercise of the state’s police power, arguing 

that “[r]equiring some variety of cherry producers to fund the promotion and advertising 

of cherries has ‘no real or substantial relation’ to either public health, safety or morals.” 

The Costas further argued the Legislature could not delegate its police power to the 

Secretary, “let alone the absurdity of abdicating the ‘police power’ authority to a few 

cherry producers who pick and cho[o]se which varieties to be regulated and which 

varieties to be left alone,” and that the Secretary failed to make certain required findings 

before issuing the marketing order. 

 The trial court granted the summary adjudication motion on December 1, 2010. 

With respect to the Costas’ police power arguments, the trial court stated such a claim did 
15 

“not form any part of the causes of action of the First Amended Complaint to which the 

motion for summary adjudication is directed.” 

Motion to File Second Amended Complaint 

 On April 1, 2011, the Costas moved to file a second amended complaint. The 

proposed complaint reasserted a cause of action alleging violation of the Costas’ free 

speech rights under the California Constitution “in order to preserve that cause of action 

for appeal,” reasserted the Costas’ equal protection and inspection causes of action, and 

asserted a new cause of action alleging the Cherry Marketing Program to be an 

unconstitutional exercise of the state’s police power. 

 In opposition, the Secretary argued the motion should be denied because: (1) the 

Costas were not diligent in seeking to amend the complaint to assert the police power 

claim; (2) allowing the amendment would prejudice the Secretary by forcing her counsel 

to ascertain the factual basis for the new claim, address the new claim in a summary 

judgment motion the parties agreed would be filed May 13, 2011, and rework her trial 

strategy should summary judgment be denied, all “at considerable expense”; and (3) Greg 

Costa’s deposition testimony “establishes that [the Costas’] proposed claim lacks merit.” 

 In reply, the Costas argued the Secretary’s opposition ignored “the policy of great 

liberality in permitting amendment at any stage of the proceedings, up to and including 

trial.” The Costas also argued, “more liberality” should be given in this case because the 

proposed amendment “simply adds a new legal theory”; and because the new theory “is a 

novel question certain to be tested in the appellate court, the preferable practice is to 

allow the amendment and permit the parties to test its legal sufficiency by demur[rer] or 

other appropriate motion.” The Costas also assured the trial court there would be no 

objection “to a continuance of the trial date in order to allow the Secretary to continue 

[with] discovery.” Finally, the Costas argued the Secretary would not be prejudiced by 
16 

the amendment because: (1) the Secretary knew since the hearing on the summary 

adjudication motion that the Costas intended to amend the complaint to assert a police 

power claim; (2) the discovery cut-off date was over two months away, “plenty of time” 

for discovery regarding the new claim; and (3) the Secretary had already served a set of 

interrogatories and demand for production relating to the new claim. 

Motion for Summary Judgment 

 On May 13, 2011, the Secretary filed a motion for summary judgment. With 

respect to the equal protection claim, the Secretary argued a rational basis existed for 

limiting the Cherry Marketing Program to the assessed varieties. Beginning with the 

1993 public hearing on adoption of the Program, the Secretary argued: “There, the 

industry testified that Bing cherries represented 90% of California’s cherry shipments and 

faced the greatest marketing challenges of any cherry variety. Additionally, at that time, 

only Bings and three other California varieties, Vans, Lamberts, and Rainiers, had been 

approved to be shipped to Japan. Given conditions in the industry, together with the new 

marketing opportunity, California’s cherry packers wanted to create a [Cherry Marketing 

Program] that would place a large emphasis on promoting the kinds of cherries that could 

be shipped to Japan, a potentially lucrative market. Industry representatives testified that 

the inclusion of the four Assessed Varieties in the [Cherry] Marketing Program would 

enable them to promote all four of those varieties in Japan.” 

 Acknowledging that, in the meantime, Japan had opened its doors to other 

varieties of cherry and production of non-assessed varieties had grown significantly, the 

Secretary argued a rational basis for the distinction continued to exist: “[D]espite these 

changes, there continues to be a rational basis for limiting the [Cherry] Marketing 

Program to the Assessed Varieties because . . . the Assessed Varieties and the nonassessed varieties are grown in different regions and reach the market at different times, 
17 

with the non-assessed varieties ripening and reaching the market earlier than the Assessed 

Varieties. . . . The Secretary could reasonably believe that the Assessed Varieties face 

greater marketing challenges than do the non-assessed varieties because the non-assessed 

varieties have an inherent marketing advantage since they reach the market first. The 

Secretary could reasonably believe that it is more difficult to move the large volumes of 

Assessed Varieties reaching the market later in the season, and that the Assessed 

Varieties face greater marketing challenges than non-assessed varieties because the 

Assessed Varieties face greater competition from cherries from other regions, such as the 

Pacific Northwest.” 

 With respect to the inspection claim, the Secretary argued: “[The Costas] assert[] 

that the present enforcement program is not uniformly applied because not all cherries are 

inspected, but lack of uniformity does not necessarily follow from a program such as the 

spot inspection program used by the Secretary and the county agricultural commissioners. 

It is normal for a spot inspection program not to capture all non-compliant cherries, but 

that does not mean the Standardization Program is not uniformly enforced. Indeed, [the 

Costas’] own testimony and the other undisputed evidence reveals that the 

Standardization Program is being enforced against all packers, not just [the Costas], and 

that [the Costas are] not treated any differently from the other packers.” 

 In opposition, with respect to the equal protection claim, the Costas argued all 

cherry producers are in a “like class” for purposes of the Cherry Marketing Program 

regardless of the varieties produced, as evidenced by the fact that production and 

shipment of non-assessed varieties grew from 6 percent in 1994 to 54 percent in 2010. 

The Costas argued the fact that Japan had initially opened its doors to only the four 

assessed varieties could not be used as a rational basis for the disparate treatment 

because, by 1998, more than half of the packages shipped to Japan were of the non-
18 

assessed varieties, and by 2010, the non-assessed varieties shipped to Japan exceeded the 

assessed varieties.3 With respect to the inspection claim, the Costas argued, “there are 

numerous disputed issues of material facts” regarding whether the Secretary is adequately 

enforcing the inspection provisions of the Food and Agriculture Code. Despite framing 

the cause of action as a violation of the provision requiring uniformity in inspections, the 

Costas conceded they are not “singled out for different treatment,” and then argued: 

“[The Costas are] claiming that because of the lack of inspectors, the lack of uniformity, 

and the ‘spot’ inspections there are really junk cherries hitting the market when [the 

Costas’] much-better-quality cherries go out to the same market which causes substantial 

problems, and it’s the Secretary’s obligation to [e]nsure not only sufficient inspectors, but 

sufficient compliance with the regulations.” 

Trial Court’s Rulings on the Motions 

 The trial court denied the Costas’ motion to file a second amended complaint, 

explaining: “[T]he proposed new cause of action opens up an entirely new field of 

inquiry―the issue of whether the facts related to market conditions and general social 

conditions in 1993 justified the institution of a marketing order for cherries (and, 

presumably, whether such conditions justify its continuance today) as an exercise of the 

State’s police powers―without any satisfactory explanation as to why this major element 

in [the Costas’] attack on the order had not been made long before trial.” The trial court 

also found the Secretary would “incur significant additional litigation expenses” if the 

amendment were allowed, and it would be unfair to the Secretary “to reshape the 

 

3 Costa also took issue with the fact that the Secretary acted through the 

Department’s chief of the marketing branch and senior agricultural economist in making 

the findings required by section 58813 and argued the Cherry Marketing Program was 

not a valid exercise of the state’s police power. 
19 

litigation in such a significant manner when [the Costas] have no reasonable explanation 

for not asserting their claims much earlier.” As an alternative ground for denying the 

motion, the trial court ruled the Costas’ new cause of action “appears to lack merit.” 

 The trial court also granted the Secretary’s summary judgment motion. With 

respect to the equal protection claim, the trial court ruled: “[T]he statement of undisputed 

material facts the Secretary has offered in support of its motion with regard to the [equal 

protection claim], along with the evidence cited in support of those statements of fact as 

listed therein, demonstrate at least two rational bases for the Marketing Order’s focus on 

certain varieties of cherries. The first such rational basis consists of the Secretary’s 

conclusion, based on information received from persons in the industry at the time of the 

Order’s inception, that the assessed varieties alone required special marketing support 

given the newly-available ability to market those varieties (and, at that time, apparently, 

no others) in Japan. As time went on (and as Japan opened its door to the importing of 

additional varieties of cherries), a further rational basis for the Order’s focus on the 

assessed varieties emerged, which was that those varieties ripened later than the nonassessed varieties, and thus were subject to competition from later-ripening cherries 

originating outside of California, thus justifying additional marketing support. While 

these justifications for the Order may be debatable as matters of policy, the Court cannot 

find, as a matter of law, that they have engendered wholly arbitrary or irrational 

classifications, or that they are demonstrably irrelevant to the legislative goal underlying 

the Marketing Order, which is the promotion of California-grown agricultural 

commodities in domestic and foreign markets. Both are reasonably conceivable states of 

facts, and plausible explanations, to support the Marketing Order’s classifications.” 

 With respect to the inspection claim, the trial court ruled: “[T]he (undisputed) fact 

that the cherry Standardization Program is enforced through ‘spot inspections’ that result 
20 

in the inspection of a small percentage of the total amount of cherries being packed, 

rather than through a more comprehensive inspection program that might reach more of 

the crop, does not establish that the Secretary has failed to enforce cherry standards in a 

uniform manner. In fact, the facts and evidence demonstrate that the Secretary has 

established an inspection program that operates in a uniform manner as to all packers. 

Plaintiffs have not shown otherwise. At most, they have shown that they disagree with 

the inspection method the Secretary has chosen to use on the basis that they believe that 

another method would be more effective and comprehensive. Such a disagreement over 

the method, however, does not establish that the Secretary has failed to comply with the 

law requiring uniform enforcement.” 

DISCUSSION 

I 

Denial of the Motion to Amend the Complaint 

 The Costas contend the trial court abused its discretion when it denied the motion 

to amend the complaint. We disagree. 

 “ ‘[T]he trial court has wide discretion in allowing the amendment of any pleading 

[citations], [and] as a matter of policy the ruling of the trial court in such matters will be 

upheld unless a manifest or gross abuse of discretion is shown. [Citations.]’ ” (Record v. 

Reason (1999) 73 Cal App.4th 472, 486; Code Civ. Proc., § 473, subd. (a)(1).) 

 While the trial court “must apply a policy of great liberality in permitting 

amendments to the complaint at any stage of the proceedings, up to and including trial, 

when no prejudice is shown to the adverse party” (Huff v. Wilkins (2006) 138 

Cal.App.4th 732, 746), “[a] different result is indicated ‘[w]here inexcusable delay and 

probable prejudice to the opposing party’ is shown.” (Magpali v. Farmers Group, Inc.

(1996) 48 Cal.App.4th 471, 487; Estate of Murphy v. Gulf Ins. Co. (1978) 82 Cal.App.3d 
21 

304, 311.) Indeed, “ ‘even if a good amendment is proposed in proper form, unwarranted 

delay in presenting it may―of itself―be a valid reason for denial.’ [Citation.]” (Record 

v. Reason, supra, 73 Cal.App.4th at p. 486.) 

 Denying leave to amend, the trial court ruled: “In the proposed new fourth cause 

of action, [the Costas] allege that when the California Marketing Act of 1937 was passed, 

the Legislature made no findings that cherries must be subject to the Act, and that there 

was no proper basis under the Act for instituting a marketing order for cherries nearly 60 

years later, in 1993, because there was at that time no necessity for such an order to 

promote the public health, safety, or general welfare. This claim thus involves facts and 

circumstances of which [the Costas] were, or at least should have been, aware at the time 

of the institution of the marketing order in 1993, and certainly at the time of the filing of 

the original complaint in this action in 2003, particularly given the allegation in the 

proposed amended complaint that plaintiff Felix Costa has been in the business of 

growing cherries in California for approximately 50 years. [¶] Although [the Costas] 

arguably acted with reasonable diligence to seek leave to amend the pleading to add this 

cause of action beginning in November, 2010, they have not provided a satisfactory 

explanation why the cause of action was not explicitly asserted until that late point in the 

litigation. The facts supporting [the Costas’] claim that the Marketing Order was not 

justified by economic and social conditions at the time of its institution would have been 

known to them at that time, in 1993, and certainly at all times thereafter when the 

Marketing Order was in effect. [¶] Moreover, the proposed fourth cause of action opens 

up an entirely new field of inquiry―the issue of whether the facts related to market 

conditions and general social conditions in 1993 justified the institution of a marketing 

order for cherries (and, presumably, whether such conditions justify its continuance 
22 

today)―without any satisfactory explanation as to why this major element in [the 

Costas’] attack on the order had not been made long before trial.” 

 The trial court continued: “With trial set to commence in this matter in just over 

two weeks, the prejudice to [the Secretary] should the amendment be permitted is clear. 

The proposed new fourth cause of action would inject significant new issues into the 

case, which have not been subject to motion practice. The trial date would have to be 

vacated so that further discovery, and possibly motions, could take place. This would 

cause further delay in a case that is already eight years old, and also would cause [the 

Secretary] to incur significant additional litigation expenses. It would be unfair and 

prejudicial to [the Secretary] to reshape the litigation in such a significant manner when 

[the Costas] have no reasonable explanation for not asserting their claims much earlier. 

[¶] Even though the parties voluntarily stayed this action for a significant period of time 

to await the resolution of appellate court cases involving the free speech and free 

association claims asserted in the complaint, that voluntary stay would not have 

prevented [the Costas] from seeking a stipulation or leave of court to add their police 

power claim at a much earlier date. Even though [the Secretary], in an excess of caution, 

has done some limited discovery regarding [the Costas’] proposed police power claim, 

the Court concludes that it would be unfair and prejudicial to permit amendment of the 

complaint to raise this entirely new and significant field of inquiry at this late date, 

approximately two weeks before trial is scheduled to begin.” 

 Finally, the trial court explained: “Case law also indicates that leave to amend 

should be denied where it would be patently unfair to permit a party to defeat a motion 

for summary judgment by setting up a new claim that effectively turns the complaint into 

a ‘moving target’ [citing Melican v. Regents of University of California (2007) 151 

Cal.App.4th 168, 176]. In this case, [the Costas] first raised their [police power] claim 
23 

when it became apparent that the Court would grant [the Secretary’s] motion for 

summary adjudication in November, 2010. [The Secretary] has calendared a further 

motion for summary judgment for the same date as the present motion. [The Costas’] 

attempt to amend the complaint to add a new claim never asserted before in this case 

appears to be a last-ditch effort to stave off the inevitable by setting up a classic ‘moving 

target.’ The Court finds that it would be patently unfair to permit this to occur.” 

 We adopt the trial court’s reasoning as our own and affirm its decision to deny the 

Costas’ motion to amend. 

 Nor are we persuaded by the Costas’ arguments to the contrary. First, the Costas 

assert the proposed amendment “did not add a party, did not claim more damages, did not 

claim any totally unrelated issue or cause of action, but instead was based upon the same 

marketing order, the same Marketing Act of 1937, the same commonality of facts as the 

equal protection argument.” This does not change the fact the proposed police power 

claim would add an entirely new legal issue to the case, i.e., whether or not the Cherry 

Marketing Program was at its inception, and continues to be, “reasonably related to the 

accomplishment of a legitimate governmental purpose.” (Birkenfeld v. Berkeley (1976) 

17 Cal.3d 129, 158.) Nor does the Costas’ briefing on appeal attempt to justify the delay 

in asserting this new cause of action. (See Green v. Santa Margarita Mortgage Co.

(1994) 28 Cal.App.4th 686, 692 [“unexcused delay is sufficient to uphold a trial judge’s 

decision to deny the opportunity to amend pleadings, particularly where the new 

amendment would interject a new issue which requires further discovery”].) 

 The Costas also take issue with the trial court’s statement that, “[w]ith trial set to 

commence in this matter in just over two weeks, the prejudice to [the Secretary] should 

the amendment be permitted is clear.” (Italics added.) The Costas argue their “motion 

for leave to amend was originally set for hearing on April 22, 2011, approximately three 
24 

and a half months . . . before the scheduled trial date of August 1, 2011. However, . . . 

the court requested it be rescheduled seven weeks later on June 10, 2011. . . . The court 

requested the hearing on the motion to be heard at the same time as the Secretary’s 

motion for summary judgment. Even June 10 would have been over seven weeks before 

the trial, but on June 10, 2011 the court again continued the hearing on both matters until 

July 15, 2011 (two weeks before the scheduled trial).” While true, the trial court’s 

decision was not based solely on the fact that the hearing date was two weeks before trial 

was set to begin. The decision was primarily based on the fact that the circumstances 

argued in support of the police power claim were known or should have been known by 

the Costas since 1993. The Costas could have included such a claim when they filed 

their initial lawsuit in June 2003, and should at the very least have done so when they 

filed their first amended complaint in July 2010. Again, the Costas present no argument 

attempting to justify waiting until April 2011 to add this new claim to the litigation. 

 The Costas also dispute the trial court’s conclusion the proposed amendment 

would require further discovery, arguing: “First, the Secretary had already engaged in 

discovery on the proposed fourth cause of action, deposed the two basic witnesses for 

[the Costas], did written discovery to which [the Costas] responded, and the Secretary 

could have included her ‘facts’ and argument in her motion for summary judgment 

(which was not filed until May 13, three weeks after the scheduled hearing date on the 

motion to amend). Further, the Secretary could have used a demurrer or a motion for 

judgment on the pleadings with respect [to] that cause of action.” We are not persuaded. 

First, the Secretary could not have added the police power claim to her summary 

judgment motion because the trial court ruled on the motion to amend and the summary 

judgment motion at the same time. While, as the Costas point out, the motion to amend 

was filed six weeks before the summary judgment motion was filed, and while the 
25 

Secretary did engage in some discovery regarding the proposed new claim, it would be 

patently unreasonable to expect the Secretary to preemptively challenge the Costas’ 

proposed police power claim in a motion for summary judgment, the scope of which is 

delimited by the pleadings (see Snatchko v. Westfield LLC (2010) 187 Cal.App.4th 469, 

477), which at that time did not include a police power claim. And even had the trial 

court ruled on the motion to amend before ruling on the summary judgment motion, 

granting the motion to amend would no doubt have necessitated a continuance to allow 

the Secretary to conduct additional discovery and add the police power claim to the 

summary judgment motion. This would have resulted in additional expense to the 

Secretary. 

 Second, to say the Secretary would not be prejudiced because she could challenge 

the police power claim on the pleadings assumes the proposed claim is insufficient to 

state a cause of action. If that is the case, denial of the motion to amend is fully 

supported on that basis alone. (See Congleton v. National Union Fire Ins. Co. (1987) 

189 Cal.App.3d 51, 62.) And if the claim would survive a demurrer, then the Secretary 

would be put in the position of filing a third summary judgment motion to challenge this 

new claim, with the attendant expense of litigating such a motion. As the trial court 

ruled, prejudice is clear. 

 Finally, the Costas argue it is “mind boggling” for the trial court to have found 

“the new fourth cause of action would ‘inject significant new issues into the case’ ” and 

then, “ironically,” also find the “claim ‘appears to lack merit.’ ” This is neither mind 

boggling nor ironic. However, having concluded the trial court did not abuse its 

discretion in denying leave to amend because of the Costas’ unexcused delay, coupled 

with the fact the amendment would interject a new legal issue into the case, requiring the 
26 

Secretary to engage in further discovery, we need not pass on the likely merit of the 

police power claim. 

II 

Grant of the Summary Judgment Motion 

 The Costas also claim the trial court erred in granting the Secretary’s summary 

judgment motion. Not so. 

 “A defendant’s motion for summary judgment should be granted if no triable issue 

exists as to any material fact and the defendant is entitled to a judgment as a matter of 

law. [Citation.] The burden of persuasion remains with the party moving for summary 

judgment. [Citation.]” (Kahn v. East Side Union High School Dist. (2003) 31 Cal.4th 

990, 1002-1003 (Kahn); Code Civ. Proc., § 437c, subd. (c).) Accordingly, a defendant 

moving for summary judgment “bears the burden of persuasion that ‘one or more 

elements of’ the ‘cause of action’ in question ‘cannot be established,’ or that ‘there is a 

complete defense’ thereto. [Citation.]” (Aguilar v. Atlantic Richfield Co. (2001) 25 

Cal.4th 826, 850; Code Civ. Proc., § 437c, subd. (o)(2).) Such a defendant also “bears 

the initial burden of production to make a prima facie showing that no triable issue of 

material fact exists. Once the initial burden of production is met, the burden shifts to 

[plaintiff] to demonstrate the existence of a triable issue of material fact.” (Laabs v. City 

of Victorville (2008) 163 Cal.App.4th 1242, 1250.) 

 On appeal from the entry of summary judgment, “[w]e review the record and the 

determination of the trial court de novo.” (Kahn, supra, 31 Cal.4th at p. 1003.) “While 

we must liberally construe plaintiff’s showing and resolve any doubts about the propriety 

of a summary judgment in plaintiff’s favor, plaintiff’s evidence remains subject to careful 

scrutiny. [Citation.] We can find a triable issue of material fact ‘if, and only if, the 

evidence would allow a reasonable trier of fact to find the underlying fact in favor of the 
27 

party opposing the motion in accordance with the applicable standard of proof.’ 

[Citation.]” (King v. United Parcel Service, Inc. (2007) 152 Cal.App.4th 426, 433; see 

Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163 [“responsive evidence that gives rise 

to no more than mere speculation cannot be regarded as substantial, and is insufficient to 

establish a triable issue of material fact”].) 

A. 

Equal Protection Claim

 Both the federal and California Constitutions prohibit the denial of “equal 

protection of the laws.” (U.S. Const., 14th Amend.; Cal. Const., Art. I, § 7, subd. (a).) 

“The concept of equal protection recognizes that persons who are similarly situated with 

respect to a law’s legitimate purposes must be treated equally.” (People v. Brown (2012) 

54 Cal.4th 314, 328; In re Eric J. (1979) 25 Cal.3d 522, 530.) 

 “ ‘The first prerequisite to a meritorious claim under the equal protection clause is 

a showing that the state has adopted a classification that affects two or more similarly 

situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether 

persons are similarly situated for all purposes, but ‘whether they are similarly situated for 

purposes of the law challenged. [Citation.]” (Cooley v. Superior Court (2002) 29 Cal.4th 

228, 253.) “ ‘If persons are not similarly situated for purposes of the law, an equal 

protection claim fails at the threshold. [Citation.]’ [Citation.]” (Walgreen Co. v. City 

and County of San Francisco (2010) 185 Cal.App.4th 424, 434.) 

 Here, the law challenged is the Cherry Marketing Program. In order to determine 

whether growers and packers of assessed and non-assessed cherries are similarly situated 

for purposes of this Program, we must first determine the purposes of the Program. As 

previously stated, the Cherry Marketing Program placed an assessment on growers and 

packers of Bing, Van, Lambert, and Rainier cherries in order to fund “sales promotion, 
28 

market development, and general research for [the assessed] varieties.” The Program was 

established in 1993 to address the concern among members of the cherry industry that an 

increasingly larger volume of cherries required greater promotion and establishment of 

larger markets for the increased volume. This purpose was in line with the CMA, which 

authorized issuance of marketing orders establishing “ ‘plans for advertising and sales 

promotion to create new or larger markets for agricultural commodities,’ ” to be paid for 

by contributions from the regulated growers and packers, and “declared, as one of the 

Legislature’s policies, the establishing and maintaining of orderly marketing conditions 

for agricultural commodities in order to raise and support prices.” (Gerawan I, supra, 24 

Cal.4th at pp. 478-479.) 

 The reason four varieties were targeted, rather than all varieties of California 

cherry, was stated at the 1993 public hearing: “The intent of the [Cherry Marketing 

Program] is to promote only [the assessed varieties]. And the reason[s] for making these 

distinctions are as follows: The bing is . . . the primary cherry in California. It makes up 

and represents about 90 percent of all the cherry shipments out of California. [¶] . . . [¶] 

And the proponents feel that the bing cherry faces the greatest marketing challenges 

ahead, and it is the intent of the marketing order to base their promotional funds on the 

bing cherry primarily, at least initially. [¶] The vans, and the lamberts, and the rainiers, 

the other three varieties are much smaller in sales volume, but they were included 

because these varieties are also being shipped to Japan, and this makes the promotional 

programs simplified because now we can promote in Japan for those four varieties.” At 

the time, these were the only cherry varieties accepted by Japan for import into that 

country. Thus, at least in 1993, it is clear growers and packers of assessed and nonassessed varieties are not similarly situated for purposes of a program designed to 
29 

promote only the assessed varieties, with an emphasis on market development in a 

country that accepted only those varieties. 

 Later, however, Japan opened its doors to additional varieties. And by 2010, over 

half of the shipments to Japan were non-assessed varieties. Nevertheless, there remains a 

valid distinction between the assessed and non-assessed varieties that prevents growers 

and packers of the two groups from being similarly situated for purposes of the Cherry 

Marketing Program. An additional reason for including only Bings, Vans, Lamberts, and 

Rainiers in the Program, stated during the 1993 public hearing, was that the varieties not 

included in the Program were typically harvested before the assessed varieties. As 

declared by Jim Culbertson, the Cherry Board’s executive manager: “The assessed 

varieties are primarily Bing and Rainier cherries. Historically, the Bing cherry has been 

the standard cherry for the industry both in California and the Pacific Northwest. Bing 

cherries do not grow well in the warmer California growing regions because of the high 

temperatures during the summer growing season following harvest. Accordingly, 

California’s Bings are generally grown in the Santa Clara Valley and the more northern 

regions of the Central Valley. Harvest of Bing cherries usually begins around May 15 

and continues until the end of the California cherry harvest at the end of June. . . . 

Rainier cherries are in the market from May 10 until the end of the season. Vans and 

Lamberts, the other assessed varieties, were once a popular variety with many growers 

and were two of the four varieties approved for sale to Japan at the time the Cherry 

Marketing Program was proposed and ratified.” “Van and Lambert cherries, although 

small in volume, are harvested and marketed in the later part of the California season.” 

With respect to the non-assessed varieties, Culbertson explained these “varieties are early 

ripening varieties, and are grown in the warmer, more southern regions of the State. 
30 

They are generally harvested from April 25 until June 1. There are no cherries in the 

market prior to the first shipments from California.” 

 At the 2002 continuation hearing, there was testimony that later-ripening varieties 

run into competition from cherries grown in the Pacific Northwest, particularly when 

there is a late harvest. Culbertson explained: “The Pacific Northwest cherry season will 

usually begin around June 5 and hit peak daily shipment volumes by July 1. Many 

seasons, California late season producers of assessed varieties must compete in the 

market place with cherries from the [Pacific] Northwest.” Accordingly, the Cherry 

Board’s “domestic cherry promotion activities have been driven for many years by 

featuring retail support during the peak production period for the assessed varieties of 

California cherries, May 25 through June 20. The Board focuses on this period because it 

wants to ensure that the Board’s program benefits assessed varieties, with only incidental 

benefit to non-assessed varieties. The industry over the years has felt that the earlyseason, non-assessed varieties, with their lack of competition and modest production 

volume marketed over a month long period, did quite well without promotional support.” 

 There is no dispute that assessed varieties ripen later than non-assessed varieties. 

Nor is there any dispute that assessed varieties face greater competition from cherries 

from the Pacific Northwest.4 And while the Costas purport to dispute the fact the Cherry 

 

4 The Costas do not offer any evidence disputing this basic fact. The Secretary’s 

separate statement summarizes testimony from the 2002 continuation hearing concerning 

late harvest competition from the Pacific Northwest. In their response and opposition to 

the Secretary’s separate statement, next to this summary, the Costas stated: “Disputed: it 

was simply one proponent witness referred in the Secretary’s alleged undisputed fact; and 

the testimony had nothing to do with any alleged justification for why only four varieties 

were being regulated and assessed, and not the rest of the California varieties, the 

testimony dealt with California varieties, as a whole being harvested and dumped into the 

market at the same time as the [Pacific Northwest] cherry.” While the testimony did not 

specifically state only assessed varieties face competition from the Pacific Northwest 
31 

Board’s promotional activities are timed to correspond with the peak production period 

for assessed varieties, they do so by improperly citing to their own interrogatory 

responses (Code Civ. Proc., § 2030.410; see also Great American Ins. Co. v. Gordon 

Trucking, Inc. (2008) 165 Cal.App.4th 445, 450 [“responding party may not use its own 

interrogatory responses in its own favor”]) and to pages of a deposition transcript that 

were not made a part of the record. There is also undisputed evidence, including 

deposition testimony from the Costas’ own employee, that the Cherry Board’s research 

activities are directed towards benefitting the assessed varieties. 

 Based on undisputed evidence, we conclude the Cherry Marketing Program 

addresses needs specific to the assessed varieties. For this reason, as a matter of law, 

growers and packers of assessed and non-assessed varieties are not similarly situated for 

purposes of the Program. 

B. 

Inspection Claim

 The Costas’ inspection claim fares no better. As a preliminary matter, we note this 

claim is not a challenge to the Cherry Marketing Program, which prohibits the Advisory 

Board from enacting its own quality and/or grade standards. Instead, the Costas contend 

the Secretary’s use of spot inspections “is palpably offensive to the Legislative intent” 

behind provisions requiring the Secretary to “[e]nsure uniformity in inspection.” 

Specifically, the Costas cite sections 42651 [the Secretary “shall enforce this division”], 

42652 [“refusal of any officer who is authorized under this division to carry out the 

orders and directions of the [Secretary] in the enforcement of this division is neglect of 

 

during a late harvest season, a reasonable inference is that assessed varieties, which ripen 

significantly later than their non-assessed counterparts, face greater competition from 

Pacific Northwest cherries. 
32 

duty”], 42681, subdivision (c) [the Secretary may “[m]ake such other regulations as are 

reasonably necessary to secure uniformity in the enforcement of this division”], 42683 

[the Secretary shall consider various factors in promulgating regulations concerning 

standard containers, lids, marking, sizing, consumer packages or packing requirements], 

and 42684 [“establishment and maintenance of minimum standards of quality and 

maturity for fruits, nuts, and vegetables is essential to ensure that products of acceptable 

and marketable quality will be available to the consumer”]. 

 These provisions do not charge the Secretary with ensuring all California cherries 

are of uniform quality. Instead, the Legislature gave the Secretary authority to make 

regulations that are “reasonably necessary to secure uniformity in the enforcement” of 

California minimum grade and quality standards. (§ 42681, subd. (c), italics added.) The 

Secretary has done so. (See 3 CCR § 1370 et seq.) The Costas do not claim the 

Secretary’s spot inspection program is not uniformly applied. They contend a factual 

dispute exists as to whether such inspections are inadequate under the law. However, 

there is no factual dispute concerning the spot inspection program itself. We have found 

nothing in the Food and Agriculture Code requiring the Secretary to employ a more 

stringent enforcement regime. Indeed, the fact subdivision (a) of section 42681 gives the 

Secretary authority to “[p]rescribe methods of selecting samples of lots or containers of 

fruits, nuts, and vegetables on a basis of size or other specific classification, which are 

reasonably calculated to produce by such sampling fair representations of the entire lots 

or containers which are sampled,” reveals that inspection of representative samples is 

appropriate. 

 We conclude the use of spot inspections to enforce the standards does not violate 

the Secretary’s obligation to ensure uniformity in inspections. 
33 

DISPOSITION 

 The judgment is affirmed. Karen Ross, as Secretary of the California Department 

of Food and Agriculture, shall recover costs on appeal. (Cal. Rules of Court, rule 

8.278(a).) 

 HOCH , J. 

We concur: 

 RAYE , P. J. 

 ROBIE , J.