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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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,                                                C069389

         v.                                                                     (Super. Ct. No. 03AS03433)

KAREN ROSS, as Secretary, etc.,

                   Defendant and Respondent.

         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.


                                                             1
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




                                              2
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




                                             3
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




                                              4
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




                                             5
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.




                                             6
                                 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.”


                                             7
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].”




                                              8
       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




                                             9
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




                                            10
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.




                                             11
                                 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]




                                              12
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




                                             13
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




                                              14
“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




                                              15
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 non-
assessed varieties are grown in different regions and reach the market at different times,




                                             16
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-




                                             17
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.


                                             18
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 non-
assessed 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




                                              19
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




                                              20
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




                                              21
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




                                              22
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




                                              23
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




                                             24
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




                                              25
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




                                              26
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,




                                                 27
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 non-
assessed varieties are not similarly situated for purposes of a program designed to




                                             28
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.




                                              29
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 early-
season, 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


                                             30
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.


                                             31
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.




                                              32
                                     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.




                                            33
