18CV339948 - The Mercury News · 12/21/2018 · Defendant MONTEREY MUSHROOMS, Inc., is a...

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COMPLAINT FOR INJUNCTION, CIVIL PENALTIES, AND OTHER EQUITABLE RELIEF

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25 Jeffrey F. Rosen

District Attorney

County of Santa Clara

San Jose, CA 95110

JEFFREY F. ROSEN (SBN 163589)

District Attorney, County of Santa Clara

DENISE RAABE (SBN 171949)

Deputy District Attorney

Environmental Protection Unit Exempt from fees pursuant to

70 West Hedding Street Government Code §6103

San Jose, California 95110

Telephone: (408) 792-2549

Facsimile: (408) 279-8742

[email protected]

Attorneys for Plaintiff

IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN AND FOR THE COUNTY OF SANTA CLARA

THE PEOPLE OF THE STATE OF

CALIFORNIA,

Plaintiff,

v.

MONTEREY MUSHROOMS, INC.,

a California Corporation;

SHAH KAZEMI an individual;

and DOES 1-100, Inclusive,

(642 Miramonte Ave., Morgan Hill, CA.

APN 712-24-005

APN 712-07-108

APN 712-26-046

APN 712-26-018

APN 712-07-017

APN 712-26-020

APN 712-25-051

APN 712-24-009)

Defendants.

No.

COMPLAINT FOR PRELIMINARY AND

PERMANENT INJUNCTIONS, CIVIL

PENALTIES, DAMAGES AND OTHER

EQUITABLE RELIEF

(Fish and Game Code §1602, 1615, 5650,

5650.1 et seq.; Business and Professions Code

§ 17200 et seq.)

UNLIMITED CIVIL COMPLAINT (Amount

demanded exceeds $25,000.00)

Plaintiff, THE PEOPLE OF THE STATE OF CALIFORNIA, bring this action by and

through JEFFREY F. ROSEN, District Attorney of the County of Santa Clara, and allege the

following:

E-FILED12/21/2018 6:32 PMClerk of CourtSuperior Court of CA,County of Santa Clara18CV339948Reviewed By: R. Walker

18CV339948

mailto:[email protected]

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25 Jeffrey F. Rosen

District Attorney


San Jose, CA 95110

PLAINTIFF’S AUTHORITY

1. The allegations set forth in paragraphs 3 through 328 of this Complaint are alleged

on information and belief and cover the time period between January 6, 2012, to the present

(“Complaint Period”).

2. The authority for JEFFREY F. ROSEN, District Attorney of Santa Clara County,

(hereafter “People”) acting to protect the public from health and safety hazards and to protect the

environment of the State of California, to bring this action in the name of and on the behalf of the

People of the State of California, is derived from the statutory and decisional law of the State of

California, including but not limited to Fish and Game Code sections 5650, 5650.1, 1602, 1615,

12016 and Business and Professions Code sections 17200, 17203, 17204, and 17206. Pursuant to

California Fish and Game Code section 5650.1, the People may bring a civil action in the name of

the People of the State of California for violations of state law dealing with water pollution as set

forth in Chapter 2 of Division 6 of the California Fish and Game Code. The People may also

bring a civil action in the name of the People of the State of California for violations of state law

involving the protection and conservation of fish and wildlife as set forth in Chapter 6 of Division

2 of the California Fish and Game Code section 1615. The People also have authority to bring a

civil action in the name of the People of the State of California to enjoin any person who engages,

has engaged, or proposes to engage in unfair competition, (unlawful, unfair or fraudulent business

practice) as defined in California Business and Professions Code section 17200 et seq., and to

seek permanent injunctions and civil penalties for each act of unfair competition. The alleged

actions of Defendants, as set forth below, are in violation of the laws and public policy of the

State of California and are inimical to the welfare, rights, and interests of the general public.

//

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25 Jeffrey F. Rosen

District Attorney


San Jose, CA 95110

JURISDICTION, VENUE AND TOLLING OF THE

STATUTE OF LIMITATIONS

3. Jurisdiction and venue is proper in the Superior Court of Santa Clara County

because Plaintiff seeks to obtain permanent injunctions and enforce civil penalty provisions of

Business and Professions Code section 17200 et seq., for unlawful business practices, and Fish

and Game Code sections 5650, 5650.1, 1602, 1615 for acts which polluted waters of the State

and/or placed waste where it may enter a river, stream or lake within the State of California, all of

which occurred within Santa Clara County. (Code of Civil Procedure section 393, Article 6,

Section 10 of the California Constitution)

4. Defendant MONTEREY MUSHROOMS, INC. is now and, was at all times

mentioned in this Complaint, a California corporation doing business in its own capacity and/or

through officers, employees, agents, subsidiaries, and affiliates in the County of Santa Clara,

State of California.

5. Plaintiff and Defendant MONTEREY MUSHROOMS, INC., (hereafter

MONTEREY MUSHROOMS), and all wholly or partially owned subsidiaries of MONTEREY

MUSHROOMS, and Defendant SHAH KAZEMI, owner and Chief Executive Officer of

MONTEREY MUSHROOMS, have entered into a series of agreements to toll any applicable

statute of limitations. As a result of those agreements, each day from January 5, 2016, up to and

including the date of the filing of this Complaint (hereafter “Tolling Period”), will not be included

in computing the time limited by any statute of limitations applicable to any and all causes of

action brought against Defendants MONTEREY MUSHROOMS and SHAH KAZEMI based on

claims covered by the tolling agreement. The covered claims in the tolling agreement includes

each of the causes of actions and claims alleged in this lawsuit against Defendants MONTEREY

MUSHROOMS and SHAH KAZEMI.

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25 Jeffrey F. Rosen

District Attorney


San Jose, CA 95110

DEFENDANTS

6. Defendant MONTEREY MUSHROOMS, Inc., is a California corporation with a

current address for its principal place of business and headquarters at 260 Westgate Drive,

Watsonville, California. MONTEREY MUSHROOMS owns ten growing facilities or farms

throughout the United States and Mexico where they grow and ship different varieties of

mushrooms throughout the United States. According to the company’s website, MONTEREY

MUSHROOMS is the largest grower of mushrooms in North America. MONTEREY

MUSHROOMS owns and operates, either directly or through wholly owned subsidiaries, four

farms within California: two in Monterey County, one in San Luis Obispo County, and one

located at 642 Hale Avenue, Morgan Hill, California, in Santa Clara County (hereafter

“MORGAN HILL”). The MORGAN HILL facility consists of seventy (70) plus acres located at

the intersection of Hale Avenue and Miramonte Avenue, in Morgan Hill, CA, APN numbers 712-

24-005; 712-07-108; 712-26-046; 712-26-018; 712-07-017; 712-26-020; 712-25-051; 712-24-

009. Pursuant to Santa Clara County Property records the address for these parcels is 642

Miramonte Ave., Morgan Hill, CA.

7. Whenever reference is made in this complaint to any act of Defendant

MONTEREY MUSHROOMS, such reference shall be deemed to mean that the corporation

MONTEREY MUSHROOMS’ officers, employees, agents, representatives, subsidiaries, or

contractors did, ratified or authorized or caused to be done, or recklessly or carelessly failed to

adequately supervise, or control or direct, such acts or omissions while actively engaged in the

ownership, management, direction or control of the affairs of said corporate Defendant or while

acting within the scope and course of their duties.

8. Defendant SHAH KAZEMI founded Defendant Monterey Mushrooms, Inc. in

1971, and is, and at all times relevant to this Complaint, the President and Chief Executive

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District Attorney


San Jose, CA 95110

Officer of Monterey Mushrooms, Inc., a privately held, family owned company, whose stock is

not publicly traded.

9. The true names of Defendants sued in this Complaint under the fictitious names of

DOES 1 through 100, inclusive, are unknown to Plaintiff, who therefore sues those Defendants by

such fictitious names under the provisions of section 474 of the Code of Civil Procedure.

Defendants DOES 1 through 100 are in some manner responsible for the violations alleged

herein. Each reference to, or allegation against, MONTEREY MUSHROOMS in this complaint

is also a reference to or allegation against Defendant SHAH KAZEMI and all Defendants sued as

DOES 1-100, hereafter collectively referred to as Defendants. Plaintiff will amend this

Complaint to show their true names when they have been ascertained.

10. At all times relevant hereto, Defendant SHAH KAZEMI and Defendants DOES 1 -

10 were in a position of responsibility allowing them to influence company policies or activities

with respect to Defendant MONTEREY MUSHROOMS’ compliance with California laws

prohibiting the discharge of deleterious process water, contaminated storm water, and production

wastewater into waters of this state, and had, by reason of their position in the company,

responsibility and authority either to prevent in the first instance, or promptly to correct the

violations complained of herein, but failed to do so. In addition to any direct personal liability of

these individuals, Defendant SHAH KAZEMI and Defendants DOES 1 - 10 also are personally

liable under the "responsible corporate officer doctrine" for violations of law committed by

Defendant MONTEREY MUSHROOMS as alleged herein.

11. Whenever reference is made in this Complaint to any act of a corporate defendant,

that allegation shall mean the corporation did the acts alleged in this Complaint through its

officers, directors, employees, agents and/or representatives while acting within the actual or

ostensible scope of their authority.

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25 Jeffrey F. Rosen

District Attorney


San Jose, CA 95110

12. Whenever reference is made in this Complaint to any act of Defendants, such

allegations shall be deemed to mean the act of each Defendant acting jointly and severally.

13. Whenever reference is made in this Complaint to any act of Defendants, such

allegations shall have occurred during the Complaint Period, unless otherwise specified.

INTRODUCTION

14. On December 12, 2015, California Department of Fish and Wildlife received a

report that Defendant MONTEREY MUSHROOMS may be in violation of Fish and Game Code

section 5650(a)(6), discharging deleterious substance into waters of the state, Fisher Creek.

15. Between January 5, 2016, and April 2017, California Department of Fish and

Wildlife Wardens and Environmental Scientists (hereafter “Wardens”) investigated, observed,

recorded and documented by photographs, (see Exhibits 1-33 attached to this Complaint), videos

and testing results, intentional discharges of deleterious process water and deleterious

contaminated or polluted storm water into waters of the state, Fisher Creek and tributaries to

Fisher Creek, by Defendants at the MORGAN HILL facility. The discharges include, but are not

limited to, process water, production wastewater, and contaminated or polluted storm water, from

pipes, failing pumps, storm water holding ponds, process water tanks, leachate or runoff from

spent or used compost piles and production compost piles, all of which are deleterious and a

waste, directly into waters of the state, Fisher Creek and tributaries to Fisher Creek. Testing

results were not obtained for every day of observed discharge. The specifics of each discharge are

described in the Sixty-Eight Causes of Action contained in this Complaint.

Prior Unlawful Discharge of Deleterious Wastewater at Morgan Hill Facility

16. On November 20, 1985, the California Regional Water Quality Control Board, San

Francisco Bay Region, (hereafter “RWQB”) issued Waste Discharge Requirements Order No. 85-

128 requiring Defendants to install a Class-II surface impoundment, also known as an

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District Attorney


San Jose, CA 95110

evaporation pond, by November 1, 1986, for their MORGAN HILL facility. The RWQB Order

No. 85-128 stated the following:

A. Prohibitions

1. The disposal, storage, or handling of wastes shall not create a condition

of pollution or nuisance as defined in Section 13050 (l) and (m),

respectively, of the California Water Code.

2. Wastes shall not be placed in any position where they can be carried

from and discharged into waters of the State or of the United States.

4. The discharge of wastewater containing Total Dissolved Solids in

excess of 500 mg/l to any location other than the evaporation ponds

described in the ROWD and supplemental submittals, is prohibited.

5. The discharger shall not cause the following conditions to exist in waters

of the State at any place outside the waste management units:

a. Surface waters

1. Floating, suspended, or deposited macroscopic particulate

matter or foam.

2. Bottom deposits or aquatic growths.

3. Alteration of temperature, turbidity, or apparent color beyond

present natural background levels.

4. Visible, floating, suspended, or deposited oil or other products

of petroleum origin.

5. Toxic or other deleterious substances to be present in

concentrations or quantities which may cause deleterious

effects on aquatic biota, wildlife or waterfowl, or which render

any of these unfit for human consumption either at levels

created in the receiving waters or as a result of biological

concentration.

RWQB Order No. 85-128 documents that Defendants, and each of them, were informed that all

discharges of waste, wastewater or other toxic or deleterious substances, to the waters of the state,

Fisher Creek and the tributaries to Fisher Creek, was prohibited. (All of the RWQB orders

referenced in this Complaint are publicly available.)

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25 Jeffrey F. Rosen

District Attorney


San Jose, CA 95110

17. On September 17, 1986, the RWQB granted Defendants’ request for an extension

of time to install the Class-II surface impoundment to September 1, 1988, for the following

reasons:

3. The discharger expected that the cost of the entire wastewater

project, as described in the Report of Waste Discharge (ROWD)

filed January 25, 1985 and supplemented by additional submittals of

April 4, 1985, May 16, 1985, and August 9, 1985, would be under

one million dollars. However, the bids they received for the two

evaporation ponds alone are over one million dollars. This expense,

when combined with engineering and other project costs, increases

the total project cost to over two million dollars, more than twice the

original cost estimate. An expenditure of that magnitude could

seriously jeopardize the financial stability and existence of the

company at this facility.

4. The discharger is requesting an extension of time from the

November 1, 1986 compliance deadline to September 1, 1988, for

the purpose of reevaluating the costs of alternative waste treatments

relative to the cost of the proposed evaporation ponds.

B. The following shall be added to Provision C.12 of Order No. 85-

128:

12. The discharger shall, by September 1, 1987, report to the Board

their decision either to operate or close the facility, based on an

assessment of the feasibility of an economic method of wastewater

treatment. This report shall, if necessary, include an amended

Report of Waste Discharge that clearly outlines their waste

management system, or provides for closure of the existing

facilities. (RWQB Order No. 86-89, Order to Amend Order No. 85-

128)

18. RWQB records document that Defendants did not install the Class-II surface

impoundment at the MORGAN HILL facility until 2001, sixteen years after the RWQB’s 1985

Order No. 85-128. During the sixteen years, Defendants remained in full production and

unlawfully discharged their wastewater into the unlined percolation pond. The Class-II surface

impoundment is the current process water holding pond, and the unlined percolation pond is the

current storm water holding pond at Defendants’ MORGAN HILL facility. This is the same

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District Attorney


San Jose, CA 95110

storm water pond that Defendants discharged contaminated storm water from and into waters of

the state, the tributaries to Fisher Creek and Fisher Creek, in 2017.

19. On June 27, 2001, the RWQB issued Cleanup and Abatement Order No. 01-058 to

Defendants for violations at the MORGAN HILL facility. One violation was for collecting

wastewater and polluted or contaminated storm water runoff at the on-site unlined percolation

pond. The relevant paragraphs are below:

2. The discharger collects wastewater and polluted storm water

runoff from the facility and discharges it to an on-site percolation

pond. Board Order No. 85-128, Waste Discharge Requirements,

issued by the Board Executive Officer on November 20, 1985,

required that the discharger install a lined Class-II surface

impoundment for its wastewater. The discharger was prohibited to

use the percolation pond except for discharges of storm water and

certain wastewater having a pollutant load of no greater than 500

mg/l Total Dissolved Solids. To date, the discharger has not built the

Class-II surface impoundment and has been discharging wastewater

from the facility to the on-site percolation pond, in violation of

Order No. 85-128. Monitoring performed pursuant to Order No. 85-

128, reveals that the percolation pond has degraded groundwater.

Total Kjeldahl Nitrogen (TKN) measured at the up-gradient well is

<1.0 mg/l and down-gradient is measured to be 2.4 mg/l; Total

Dissolved Solids (TDS) is measured to be 500 mg/l (up-gradient)

and 1080 mg/l (down-gradient). Enforcement related to the

degradation of the groundwater may be considered by a separate

action.

3. This Board issued a Notice of Violation (NOV) letter dated April

8, 1997, citing the discharger for violating Board Order No. 85-128,

for discharging wastewater to the percolation pond mentioned

above. The NOV stated that Board Order No. 85-128 will remain in

effect until April 2, 2007, and that the groundwater below the

percolation pond had been degraded from the non-authorized

discharges. The NOV also stated that the non-authorized discharges

were to cease by June 30, 1998. At the time of a site inspection on

March 27, 2001, the non-authorized discharges to the percolation

pond continued. (RWQB Cleanup and Abatement Order No. 01-

058)

20. The June 27, 2001, RWQB Cleanup and Abatement Order No. 01-058 noted

another violation for the discharge of wastewater, which includes process water and other

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District Attorney


San Jose, CA 95110

production waste, and polluted or contaminated storm water into the drainage channel or tributary

leading to Fisher Creek. The relevant paragraphs are below:

4. During a March 27, 2001, site inspection, Board staff observed

improper and inadequate wastewater management practices

consisting of unauthorized discharges of wastewater and polluted

stormwater from the facility. During that inspection, waste deposits

observed in a drainage channel leading to Fisher Creek were

attributed to previous discharges of wastewater to that channel, in

violation of Board Order No. 85-128. In response to the

observations, Board staff issued a Notice of Violation (NOV) on

April 19, 2001 for violations of Order No. 85-128. Pursuant to that

NOV, the discharger informed Board staff that discharges occurred

on four previous occasions, December 1, 2000, January 26, 2001,

February 24, 2001 and on March 24, 2001, with a total wastewater

volume discharged of 158,000 gallons.

7. Recent discharges to the Fisher Creek, as described in Finding 4

above, indicate that the facility's holding capacity for the wastewater

it generates is regularly exceeded. This Order imposes on the

discharger the requirement for prompt implementation of additional

liquid waste holding capacity.

8. Based on the above findings, the Board finds that the discharger

has caused or permitted materials to be discharged or deposited

where they can be and have been discharged into waters of the State,

and created and threatens to continue to create a condition of

pollution. The discharged materials have resulted in unnecessary and

avoidable adverse impacts, in violation of the Basin Plan, California

Water Code, and federal Clean Water Act. (RWQB Cleanup and

Abatement Order No. 01-058)

21. The drainage channel or tributary to Fisher Creek discussed in RWQB Cleanup and

Abatement Order No. 01-058, is the same tributary that Defendants repeatedly discharged

contaminated storm water and process water into in 2016. The tributary is located next to the

compost production area where the process water holding tanks are located.

22. Although not alleged as a cause of action because the conduct is outside the statute

of limitations, the information from the RWQB proceedings is included in this Complaint because

it demonstrates Defendants’ knowledge, absence of mistake, intent, and common plan or design,

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San Jose, CA 95110

pursuant to Evidence Code section 1101(b). It is also relevant, material and required information

on the issues raised in the People’s request for injunctive relief, pursuant to Fish and Game Code

sections 1602 and 1615, subdivision (e)(1) and (2), 5650(a)(6) and 5650.1, subdivision (e) and (f),

and Business and Professions Code section 17203, and on the imposition of civil penalties

pursuant to Fish and Game Code sections 1602 and 1615, subdivision (a) and (b), 5650(a)(6) and

5650.1, subdivision (a),(b), and (i), and Business and Professions Code section 17206.

Contemporaneous Discharge of Deleterious Wastewater at Three Other Monterey

Mushrooms, Inc., California Facilities

23. During the investigation of the unlawful discharges at the MORGAN HILL facility,

Wardens also inspected Defendants’ mushroom production facilities located at 1) 777 Maher

Court, Royal Oaks, CA, 2) 415 Hall Road, Watsonville, CA, and 3) 4000 Huasna Road, Arroyo

Grande, CA. The following information is provided on information and belief. The Wardens

observed, recorded and documented by photographs, videos and testing results, the same types of

intentional discharges of deleterious process water and contaminated or polluted storm water into

waters of the state, as were observed and documented at the MORGAN HILL facility. This

includes, but is not limited to, the discharge of process water, production wastewater, and

contaminated or polluted storm water, from pipes or hoses, failing pumps, storm water holding

ponds, process water holding ponds, Baker tanks, and the discharge of leachate or runoff from

spent or used compost piles and production compost piles, all of which are deleterious and a

waste, directly into waters of the state.

24. At Defendants’ Maher Court facility, the deleterious wastewater, contaminated

storm water and process water, was discharged into tributaries to Bolsa Nueva Creek and directly

into Bolsa Nueva Creek. Bolsa Nueva Creek originates on the Maher Court facility and flows

into Carneros Creek, which then flows into Elkhorn Slough, all waters of the state.

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District Attorney


San Jose, CA 95110

25. At Defendants’ Hall Road facility, the deleterious wastewater, contaminated

stormwater and process water, was discharged into a tributary to Carneros Creek, which then

flowed into Elkhorn Slough, all waters of the state.

26. At Defendants’ Huasna Road facility, the deleterious wastewater, contaminated

stormwater and process water, was discharged into a tributary to Tar Creek. At this facility

Defendants stored all process water, wastewater and storm water in an unlined pond until

Defendants removed the unlined pond in late 2017.

27. Although not alleged as a cause of action because the conduct and violations

occurred outside the People’s jurisdiction in this Complaint, the information and documentation

of identical business practices that result in the same violations of the California Fish and Game

Code, during the same time frame as the violations at Defendants’ MORGAN HILL facility, is

included in this Complaint because it demonstrates Defendants’ knowledge, absence of mistake,

intent, and common business plan or design, pursuant to Evidence Code section 1101(b). It is

also relevant, material and required information on the issues raised in the People’s request for

injunctive relief, pursuant to Fish and Game Code sections 1602 and 1615, subdivision (e)(1) and

(2), 5650(a)(6) and 5650.1, subdivision (e) and (f), and Business and Professions Code section

17203, and on the imposition of civil penalties pursuant to Fish and Game Code sections 1602

and 1615, subdivision (a) and (b), 5650(a)(6) and 5650.1, subdivision (a),(b), and (i), and

Business and Professions Code section 17206.

GENERAL ALLEGATIONS

28. Beginning on an unknown date, but for purposes of this Complaint no earlier than

January 6, 2012, and continuing to the present, Defendants at the MORGAN HILL facility, have

repeatedly discharged deleterious process water and deleterious contaminated storm water into

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San Jose, CA 95110

waters of this state, or placed deleterious substances where it can pass into waters of this state,

specifically Fisher Creek and tributaries to Fisher Creek, a violation of Fish and Game Code

section 5650(a)(6), and placed solid and liquid waste where it may pass into any river, stream or

lake, specifically Fisher Creek and tributaries to Fisher Creek, without prior notification to the

California Department of Fish and Wildlife, a violation of Fish and Game Code section 1602, in

Morgan Hill, County of Santa Clara, State of California. Each discharge of deleterious

contaminated water into, or where it may pass into, waters of the state is a violation of both

California Fish and Game Code statutes.

29. Fisher Creek is an ephemeral tributary in the Coyote Creek Watershed that

connects to Coyote Creek during the winter months. Coyote Creek is an anadromous steelhead

trout waterway that flows through habitat known to be historically occupied by sensitive species

of amphibians, California Tiger Salamander and California Red Legged Frog, on its way to the

San Francisco Bay. Fisher Creek bisects Defendant MONTEREY MUSHROOMS’ MORGAN

HILL facility at the southern side of the facility. Mushroom growing production activities occur

on both sides of Fisher Creek.

30. Fisher Creek and tributaries to Fisher Creek are ‘waters of the state’ as defined in

Fish and Game Code section 89.1 and California Water Code section 13050(e).

31. A substance is deleterious when it is harmful, often in a subtle or unexpected way.

(Meriam Webster Dictionary, 2018). A deleterious substance would include any substance which

impairs the ability of any fish and other aquatic organisms, plant, animal or bird’s ability to

breathe, feed, rid its body of waste products, avoid being eaten or reproduce.

32. Ammonia at toxic levels is deleterious to aquatic life. Total ammonia is typically

reported as total ammonia nitrogen (TAN), which is analytically measured in water samples. As

of 2013, acute and chronic toxicity of TAN criteria for aquatic life has been set by the US

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Environmental Protection Agency (EPA) to be 17 mg/L for acute toxicity and 1.9 mg/L for

chronic toxicity. (EPA 2013) Acute criteria are intended to protect species from adverse effects

caused by an exposure just once or multiple times in a short period of time. Chronic criteria are

intended to protect species from adverse effects that build up over long-term exposure.

33. In warm water habitats, which include Fisher Creek, dissolved oxygen (DO) levels

below 5.0 mg/L are deleterious to aquatic life. (California Regional Water Quality Control Board)

34. Discharge of organic waste can include significant amounts of sediment.

Discharges of sediment to streams can have both acute and chronic impacts. The deleterious

nature of sediment discharges is not only a direct physical impact to fish and other aquatic life,

but it may also be a chronic impact due to the habitat degradation from the sediment filling pools

and interstitial spaces in downstream spawning habitat. Sediment concentrations are measured by

total suspended sediment (TSS). TSS levels below 25 mg/L have no affect on aquatic life,

however levels above 25 mg/L can be considered deleterious.

35. Process water at Defendants’ MORGAN HILL facility, during the Complaint

period, consists of and includes the following:

a. water used to hydrate mushrooms in growing rooms;

b. water used to clean growing rooms;

c. water used to clean growing racks;

d. water used to clean mushrooms after harvest;

e. water used to wash trucks and other large equipment;

f. water used in compost production;

g. leachate from compost production piles or ricks;

h. all associated waste water produced from the above processes.

It is recycled and reused in the compost production process and stored in the process water pond,

two holding tanks on the wharf and in the pipes between the process water pond and two holding

tanks.

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San Jose, CA 95110

36. Contaminated storm water at Defendants’ MORGAN HILL facility contains rain

water that has come in contact with process water, used compost, production compost, and other

components used in compost production, such as used hay from horse stables containing horse

urine and feces, poultry manure, and other components. It can be stored in the storm water pond

and corresponding pipes or ditches and may also run freely through the MORGAN HILL facility.

37. Contaminated water contains process water and, or contaminated storm water.

38. Leachate is water that has percolated through a solid, such as compost, and leached

out some of the constituents.

39. The allegations in this Complaint relate to Defendants’ failure individually and

collectively, to comply with California Fish and Game Code sections 1602, 5650(a)(6), and

California Business and Professions Code section 17200 et seq. at the MORGAN HILL facility,

during the course and scope of the business practices of growing, harvesting, packaging and

transportation of mushrooms. All of the following allegations occurred at Defendants’ MORGAN

HILL facility.

40. The MORGAN HILL facility is located at the intersection of Hale Avenue and

Montgomery Avenue with the facility occupying all four quadrants. There are three tributaries to

Fisher Creek described in this Complaint, the first is near the compost processing area and

process water holding tanks in the southwest corner of the MORGAN HILL facility, the second

conveys water from the field along Hale Avenue in the northwest corner to Fisher Creek, and the

third tributary runs along Miramonte Avenue, where the spent compost piles are stored, in the

north and southeast quadrants. The People allege the following causes of action on information

and belief.

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San Jose, CA 95110

FIRST CAUSE OF ACTION

VIOLATION OF FISH AND GAME CODE SECTION 1602/1615

(Dispose of a Waste Where it May Pass into a Stream Without Notification to the

Department of Fish and Wildlife)

41. Plaintiff incorporates paragraphs 3 through 40 of this Complaint as though set forth

in their entirety.

42. On or about January 5, 2016, Wardens observed process water mixed with leachate

from the compost processing area, entering a stream, Fisher Creek; this is a discharge or disposal

of a waste directly into a stream, Fisher Creek, without prior written notification to the California

Department of Fish and Wildlife. See attached photograph Exhibit 1.

43. Unless enjoined and restrained by order of this Court, Defendants will continue to

engage in the course of conduct as alleged.

44. Plaintiff requests temporary, preliminary and permanent injunctive relief against

Defendants, and each of them, under Fish and Game Code sections 1602 and 1615, subdivision

(e)(1) and (2), and civil penalties under Fish and Game Code sections 1602 and 1615, subdivision

(a) and (b), as set forth in Plaintiff’s prayer for relief, for each day of violation.

SECOND CAUSE OF ACTION

VIOLATION OF FISH AND GAME CODE SECTION 5650(a)(6)/5650.1

(Deposit of a Deleterious Substance into Waters of the State)


in their entirety.

46. On or about January 5, 2016, Wardens observed process water mixed with leachate

from the compost processing area, entering Fisher Creek; this is a discharge or deposit of a

deleterious substance directly into the waters of the state, Fisher Creek. See attached photograph

Exhibit 1.

47. Unless enjoined and restrained by order of this court, Defendants will continue to

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Defendants, and each of them, under Fish and Game Code sections 5650(a)(6) and 5650.1,

subdivision (e) and (f), and civil penalties under Fish and Game Code sections 5650(a)(6) and

5650.1, subdivision (a) and (b), as set forth in Plaintiff’s prayer for relief, for each day of

violation.

THIRD CAUSE OF ACTION





in their entirety.

50. On or about January 19, 2016, Wardens observed process water mixed with

leachate from the compost processing area, entering a stream, Fisher Creek; this is a discharge or

disposal of a waste directly into a stream, Fisher Creek, without prior written notification to the

California Department of Fish and Wildlife. See attached photographs Exhibit 2 and 3.







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FOURTH CAUSE OF ACTION




in their entirety.

54. On or about January 19, 2016, Wardens observed process water mixed with

leachate from the compost processing area, entering Fisher Creek; this is a discharge or deposit of

a deleterious substance directly into the waters of the state, Fisher Creek. See attached

photographs Exhibit 2 and 3.







violation.

FIFTH CAUSE OF ACTION





in their entirety.

58. On or about January 27, 2016, Wardens observed contaminated storm water

leaching from used hay bales obtained from horse stables, flowing through an intentionally hand

dug ditch and directly into a stream, Fisher Creek; this is a discharge or disposal of a waste

directly into a stream, Fisher Creek, without prior written notification to the California

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Department of Fish and Wildlife. Photograph available.







SIXTH CAUSE OF ACTION





in their entirety.

62. On or about January 27, 2016, Wardens observed waste water from the production

facility, specifically the basket cleaning area where Drytec Granular is used, discharging through

a pipe and directly into a stream, Fisher Creek; this is a discharge or disposal of a waste directly

into a stream, Fisher Creek, without prior written notification to the California Department of

Fish and Wildlife. See attached photograph Exhibit 4.







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SEVENTH CAUSE OF ACTION





in their entirety.


leaching from used hay bales obtained from horse stables, flowing through an intentionally hand

dug ditch and directly into a stream, Fisher Creek; this is a discharge or disposal of a waste









EIGHTH CAUSE OF ACTION





in their entirety.


leaching from spent or used compost piles and flowing into a tributary to Fisher Creek, which

then entered a stream, Fisher Creek; this is a discharge or disposal of a waste directly into a

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stream, the tributary to Fisher Creek and Fisher Creek, without prior written notification to the

California Department of Fish and Wildlife. See attached photograph Exhibit 6. Video available.







NINTH CAUSE OF ACTION




in their entirety.


leaching from spent or used compost piles and flowing into a tributary to Fisher Creek, and then

entering a stream, Fisher Creek; this is a discharge or deposit of a deleterious substance directly

into the waters of the state, the tributary to Fisher Creek and Fisher Creek. See attached

photograph Exhibit 6. Video available.







violation.

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District Attorney


San Jose, CA 95110

TENTH CAUSE OF ACTION


(Substantial Change to Bed, Channel or Bank of Stream Without Notification to the



in their entirety.

78. On or about February 25, 2016, Wardens observed dug up dirt and disturbed soil in

the tributary to Fisher Creek, which causes silt and sediment runoff, near the process water

storage tanks. An employee of MONTEREY MUSHROOMS stated that other employees had

hacked up the soil to remove weeds; this is a substantial change to the bed, channel and bank of a

stream, the tributary to Fisher Creek, without prior written notification to the California








ELEVENTH CAUSE OF ACTION


(Substantial Change to Bed, Channel or Bank of a Stream Without Notification to the



in their entirety.

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82. On or about February 25, 2016, Wardens observed the bank of a tributary to Fisher

Creek along Miramonte Avenue, at the spent compost area, flattened or levelled, which allows

sediment and contamination to easily enter the stream; this is a substantial change to the bed,

channel and bank of a stream, the tributary to Fisher Creek, without prior written notification to

the California Department of Fish and Wildlife. See attached photograph Exhibit 8.







TWELFTH CAUSE OF ACTION





in their entirety.

86. On or about March 5, 2016, Wardens observed recently placed piles of dirt and

rock in a tributary to Fisher Creek near the process water storage tanks; this is a substantial

change to the bed, channel and bank of a stream, the tributary to Fisher Creek, without prior

written notification to the California Department of Fish and Wildlife. See attached photograph

Exhibit 9. Video available.



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THIRTEENTH CAUSE OF ACTION





in their entirety.

90. On or about March 5, 2016, Wardens observed wastewater from the production

facility discharging through two pipes directly into a stream, Fisher Creek. An employee of

Defendant MONTEREY MUSHROOMS stated that the discharge from the white pipe was

wastewater from the truck weighing scale; this is two separate discharges or disposals of a waste


Department of Fish and Wildlife. See attached photograph Exhibit 10. Video available.







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FOURTEENTH CAUSE OF ACTION





in their entirety.

94. On or about March 5, 2016, Wardens observed contaminated storm water leaching

from spent or used compost piles and flowing into a tributary to Fisher Creek, which then entered

a stream, Fisher Creek; this is a discharge or disposal of a waste directly into a stream, the

tributary to Fisher Creek and Fisher Creek, without prior written notification to the California








FIFTEENTH CAUSE OF ACTION


(Deposit of a Deleterious Substance into Waters of the State.)


in their entirety.



a stream, Fisher Creek; this is a discharge or deposit of a deleterious substance directly into the

waters of the state, the tributary to Fisher Creek and Fisher Creek. Photograph available.

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violation.

SIXTEENTH CAUSE OF ACTION




101. Plaintiff incorporates paragraphs 3 through 100 of this Complaint as though set

forth in their entirety.





Department of Fish and Wildlife. See attached photographs Exhibit 11 and 12. Video available.

Testing results: TSS 94.1 mg/L; DO 3.43 mg/L; TAN over acute level of 17 mg/L; TDS 11,400

mg/L.






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SEVENTEENTH CAUSE OF ACTION








waters of the state, the tributary to Fisher Creek and Fisher Creek. See attached photographs

Exhibit 11 and 12. Video available. Testing results: TSS 94.1 mg/L; DO 3.43 mg/L; TAN over

acute level of 17 mg/L; TDS 11,400 mg/L.

107. Unless enjoined and restrained by order of this court, Defendants, will continue to






violation.

EIGHTEENTH CAUSE OF ACTION






110. On or about March 6, 2016, Wardens observed a discharge from an overflowing

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process water pump and contaminated storm water from the surrounding area flowing into a

tributary to Fisher Creek near the process water storage tanks, that then flowed into Fisher Creek;

this is a discharge or disposal of a waste directly into a stream, the tributary to Fisher Creek and

Fisher Creek, without prior written notification to the California Department of Fish and Wildlife.

See attached photograph Exhibit 13 and 14. Video available. Testing results: TSS 178 mg/L; DO

0.65 mg/L; TAN over acute level of 17 mg/L; TDS 2,880 mg/L.







NINETEENTH CAUSE OF ACTION





114. On or about March 6, 2016, Wardens observed a discharge from an overflowing

process water pump and contaminated storm water from surrounding area flowing into a tributary

to Fisher Creek near the process water storage tanks, that then flowed into Fisher Creek; this is a

discharge or deposit of a deleterious substance directly into the waters of the state, the tributary to

Fisher Creek and Fisher Creek. See attached photograph Exhibit 13 and 14. Video available.

Testing results: TSS 178 mg/L; DO 0.65 mg/L; TAN over acute level of 17 mg/L; TDS 2,880

mg/L.


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violation.

TWENTIETH CAUSE OF ACTION










Department of Fish and Wildlife. See attached photograph Exhibit 15. Video available.







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TWENTY-FIRST CAUSE OF ACTION








waters of the state, the tributary to Fisher Creek and Fisher Creek. See attached photograph








violation.

TWENTY-SECOND CAUSE OF ACTION






126. On or about March 7, 2016, Wardens observed discharge from an overflowing



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discharge or disposal of a waste directly into a stream, the tributary to Fisher Creek and Fisher

Creek, without prior written notification to the California Department of Fish and Wildlife.

Photograph and video available.







TWENTY-THIRD CAUSE OF ACTION





130. On or about March 7, 2016, Wardens observed discharge from an overflowing



discharge or deposit of a deleterious substance directly into the waters of the state, the tributary to

Fisher Creek and Fisher Creek. Photograph and video available.






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violation.

TWENTY-FOURTH CAUSE OF ACTION






134. On or about March 7, 2016, Wardens observed discharge from a culvert

intentionally installed to direct process water and contaminated storm water from the compost

processing and storage tank area into a tributary to Fisher Creek near the process water storage

tanks, that then flowed into Fisher Creek; this is a discharge or disposal of a waste directly into a

stream, the tributary to Fisher Creek and Fisher Creek, without prior written notification to the

California Department of Fish and Wildlife. See attached photograph Exhibit 16. Video available.







TWENTY-FIFTH CAUSE OF ACTION





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138. On or about March 7, 2016, Wardens observed discharge from a culvert

intentionally installed to direct process water and contaminated storm water from the compost

processing and storage tank area into a tributary to Fisher Creek near the process water storage

tanks, that then flowed into Fisher Creek; this is a discharge or deposit of a deleterious substance

directly into the waters of the state, the tributary to Fisher Creek and Fisher Creek. See attached

photograph Exhibit 16. Video available.







violation.

TWENTY-SIXTH CAUSE OF ACTION












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TWENTY-SEVENTH CAUSE OF ACTION















violation.

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TWENTY-EIGHTH CAUSE OF ACTION

















TWENTY-NINTH CAUSE OF ACTION









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violation.

THIRTIETH CAUSE OF ACTION






158. On or about September 9, 2016, Wardens observed that the vegetation in Fisher

Creek had been recently clear cut; this is a substantial change to the bed, channel and bank of a

stream, Fisher Creek, without prior written notification to the California Department of Fish and

Wildlife. Photograph available.







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THIRTY-FIRST CAUSE OF ACTION






162. On or about October 16, 2016, Wardens observed the discharge of process water

from a leaking storage tank into a tributary to Fisher Creek located near the process water storage

tanks, that then flowed into a stream, Fisher Creek; this is a discharge or disposal of a waste

directly into a stream, the tributary to Fisher Creek and Fisher Creek, without prior written

notification to the California Department of Fish and Wildlife. See photograph attached as

Exhibit 17. Video available







THIRTY-SECOND CAUSE OF ACTION





166. On or about October 16, 2016, Wardens observed the discharge of process water

from a leaking storage tank flowing into a tributary to Fisher Creek near the process water storage

tanks, that then entered a stream, Fisher Creek; this is a discharge or deposit of a deleterious

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substance directly into the waters of the state, the tributary to Fisher Creek and Fisher Creek. See

photograph attached as Exhibit 17. Video available.







violation.

THIRTY-THIRD CAUSE OF ACTION






170. On or about November 1, 2016, Wardens, observed hydroseeding, the spray

application of seeds, mulch and fertilizer, in the bed of Fisher Creek. Defendants were only

supposed to hydroseed the ground or the banks of a stream, and not in the bed of the stream

where water flows; this is a substantial change to the bed, channel and bank of a stream, Fisher

Creek, without prior written notification to the California Department of Fish and Wildlife. See

attached photograph Exhibit 18.





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THIRTY-FOURTH CAUSE OF ACTION






174. On or about November 1, 2016, Wardens observed hydroseeding, the spray

application of seeds, mulch and fertilizer, in the bed of a tributary to Fisher Creek. Defendants

were supposed to only apply hydroseeding onto the ground or the banks of a stream, and not in

the bed of the stream where water flows; this is a substantial change to the bed, channel and bank

of a stream, the tributary to Fisher Creek, without prior written notification to the California








THIRTY-FIFTH CAUSE OF ACTION






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178. On or about January 4, 2017, Wardens observed contaminated storm water from

where spent or used compost piles were historically stored flowing into a tributary to Fisher

Creek, which then entered a stream, Fisher Creek; this is a discharge or disposal of a waste


notification to the California Department of Fish and Wildlife. See photographs attached as

Exhibit 19 and 20. Testing results: TSS 490 mg/L.







THIRTY-SIXTH CAUSE OF ACTION





182. On or about January 4, 2017, Wardens observed contaminated storm water leaching

from where spent or used compost piles were historically stored and flowing into a tributary to

Fisher Creek, which then entered a stream, Fisher Creek; this is a discharge or deposit of a

deleterious substance directly into the waters of the state, the tributary to Fisher Creek and Fisher

Creek. See photographs attached as Exhibit 19 and 20. Testing results: TSS 490 mg/L.




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violation.

THIRTY-SEVENTH CAUSE OF ACTION










notification to the California Department of Fish and Wildlife. See photographs attached as








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THIRTY-EIGHTH CAUSE OF ACTION









Creek. See photographs attached as Exhibit 21. Video available.







violation.

THIRTY-NINTH CAUSE OF ACTION






194. On or about January 7, 2017, Wardens observed a voluminous discharge of

contaminated storm water, which was stored in the storm water holding pond, from a four-inch

pipe set in the bank of a stream, Fisher Creek; this is a discharge or disposal of a waste directly

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Fish and Wildlife. See attached photograph as Exhibit 22. Video available. The storm water

pond was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L.







FORTIETH CAUSE OF ACTION







pipe set in the bank of Fisher Creek; this is a discharge or deposit of a deleterious substance

directly into the waters of the state, Fisher Creek. See attached photograph as Exhibit 22. Video

available. The storm water pond was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L.

199. The People on information and belief allege a pipe size of at least four inches,

using a low-pressure pump will have an estimated flow rate of two hundred forty (240) gallons

per minute for a twenty-four-hour period; total estimated volume of discharged contaminated

storm water into Fisher Creek is 345,600 gallons.



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5650.1, subdivision (a), (b) and (i) as set forth in Plaintiff’s prayer for relief, for each day of

violation.

FORTY-FIRST CAUSE OF ACTION






203. On or about January 8, 2017, Wardens observed a voluminous discharge of either

process water or contaminated storm water from a hose attached to a flooded sump pump, into a

field that then discharged into Fisher Creek; this is a discharge or disposal of a waste directly into

a stream, Fisher Creek, without prior written notification to the California Department of Fish and

Wildlife. See photograph attached as Exhibit 23. Video available. Testing Results: TSS 84 mg/L;

TAN 13 mg/L.







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FORTY-SECOND CAUSE OF ACTION





207. On or about January 8, 2017, Wardens observed a voluminous discharge of either

process water or contaminated storm water from a hose attached to a flooded sump pump, into a

field that then discharged into Fisher Creek; this is a discharge or deposit of a deleterious

substance directly into the waters of the state, Fisher Creek. See photograph attached as Exhibit

23. Video available. Testing Results: TSS 84 mg/L; TAN 13 mg/L.











violation.

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FORTY-THIRD CAUSE OF ACTION










Fish and Wildlife. See photograph attached as Exhibit 24. Test Results: TSS 128 mg/L; TAN 8.7

mg/L.







FORTY-FOURTH CAUSE OF ACTION








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directly into the waters of the state, Fisher Creek. See photograph attached as Exhibit 24. Test

Results: TSS 128 mg/L; TAN 8.7 mg/L.











violation.

FORTY-FIFTH CAUSE OF ACTION










notification to the California Department of Fish and Wildlife. Photograph available. Test

Results: TSS 172 mg/L.

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FORTY-SIXTH CAUSE OF ACTION









Creek. Photograph available. Test Results: TSS 172 mg/L.







violation.

//

//

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FORTY-SEVENTH CAUSE OF ACTION










Fish and Wildlife. Test Results: TSS 92 mg/L; TAN 90 mg/L; TDS 3,200 mg/L.







FORTY-EIGHTH CAUSE OF ACTION








directly into the waters of the state, Fisher Creek. Test Results: TSS 92 mg/L; TAN 90 mg/L;

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TDS 3,200 mg/L.











violation.

FORTY-NINTH CAUSE OF ACTION


(Deposit of a Waste Where it May Pass into a Stream Without Notification to the




238. On or about February 7, 2017, Wardens observed an intentional discharge from a

blue pipe of either process water or contaminated storm water into the field along Hale Avenue.

The field was flooded with contaminated storm water or process water and the contaminated

water flowed through a culvert under Hale Avenue, and through tributaries to Fisher Creek and

then into Fisher Creek; this is a deposit of a waste where it may pass into a stream, the tributary to

Fisher Creek and Fisher Creek, without prior written notification to the California Department of

Fish and Wildlife. Defendant MONTEREY MUSHROOMS’ employee turned off the discharge

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from the blue pipe when the Fish and Wildlife Warden was observed at the MORGAN HILL

facility. See attached photograph as Exhibit 25. Video available.







FIFTIETH CAUSE OF ACTION


(Placement of Deleterious Substance Where it Can Pass into Waters of the State)



242. On or about February 7, 2017, Wardens observed an intentional discharge from a

blue pipe of either process water or contaminated storm water into the field along Hale Avenue.

The field was flooded with contaminated storm water or process water and the contaminated

water flowed through a culvert under Hale Avenue., and through tributaries to Fisher Creek and

then into Fisher Creek; this is the placement of a deleterious substance where it can pass into the

waters of the state, the tributary to Fisher Creek and Fisher Creek. Defendant MONTEREY

MUSHROOMS’ employee turned off the discharge from the blue pipe when the Fish and

Wildlife Warden was observed at the MORGAN HILL facility. See attached photograph as





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violation.

FIFTY-FIRST CAUSE OF ACTION






247. On or about February 8, 2017, Wardens observed the field along Hale Avenue

flooded with contaminated storm water or process water and the contaminated water flowed

through a culvert under Hale Avenue, and through tributaries to Fisher Creek and then into Fisher

Creek; this is a deposit of a waste where it may pass into a stream, the tributary to Fisher Creek

and Fisher Creek, without prior written notification to the California Department of Fish and

Wildlife. Photo and video available. Test Results: TAN 26 mg/L; TDS 1,000 mg/L.






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FIFTY-SECOND OF ACTION





251. On or about February 8, 2017, Wardens observed the field along Hale Avenue

flooded with contaminated storm water or process water and the contaminated water flowed

through a culvert under Hale Avenue, and through tributaries to Fisher Creek and then into Fisher

Creek; this is the placement of a deleterious substance where it can pass into the waters of the

state, the tributary to Fisher Creek and Fisher Creek. Photo and video available. Test Results:

TAN 26 mg/L; TDS 1,000 mg/L.











violation.

//

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FIFTY-THIRD CAUSE OF ACTION






256. On or about February 19, 2017, Wardens observed an intentional discharge of

either process water or contaminated storm water from a blue pipe into the field along Hale

Avenue. The field was flooded with contaminated storm water or process water and the

contaminated water flowed through a culvert under Hale Avenue, and through tributaries to

Fisher Creek and into Fisher Creek; this is a deposit of a waste where it may pass into a stream,

the tributary to Fisher Creek and Fisher Creek, without prior written notification to the California

Department of Fish and Wildlife. See photographs attached as Exhibit 26 and 27. Video

available.







FIFTY-FOURTH OF ACTION






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Fisher Creek and into Fisher Creek; this is the placement of a deleterious substance where it can

pass into the waters of the state, the tributary to Fisher Creek and Fisher Creek. See photographs

attached as Exhibit 26 and 27. Video available.











violation.

FIFTY-FIFTH CAUSE OF ACTION






265. On or about February 19, 2017, Wardens observed a voluminous discharge of


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Fish and Wildlife. See photograph attached as Exhibit 28. Video available. The storm water pond

was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L, and again on April 14, 2017 TSS

112 mg/L; TAN 94 mg/L; TDS 3,300 mg/L. The storm water pond was not emptied between

these two dates, and therefore any discharge from the storm water pond between these dates is

contaminated and deleterious.







FIFTY-SIXTH CAUSE OF ACTION








directly into the waters of the state, Fisher Creek. See photograph attached as Exhibit 28. Video

available. The storm water pond was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L,

and again on April 14, 2017 TSS 112 mg/L; TAN 94 mg/L; TDS 3,300 mg/L. The storm water

pond was not emptied between these two dates, and therefore any discharge from the storm water

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pond between these dates is contaminated and deleterious.











violation.

FIFTY-SEVENTH CAUSE OF ACTION










Fish and Wildlife. See photograph attached as Exhibit 29. Video available. The storm water pond

was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L, and again on April 14, 2017 TSS

112 mg/L; TAN 94 mg/L; TDS 3,300 mg/L. The storm water pond was not emptied between

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these two dates, and therefore any discharge from the storm water pond between these dates is

contaminated and deleterious.







FIFTY-EIGHTH CAUSE OF ACTION






contaminated storm water from a four-inch pipe, which was stored in the storm water holding

pond, set in the bank of Fisher Creek; this is a discharge or deposit of a deleterious substance

directly into the waters of the state, Fisher Creek. See photograph attached as Exhibit 29. Video

available. The storm water pond was tested on January 4, 2017, TSS 70 mg/L; TAN 56 mg/L,

and again on April 14, 2017 TSS 112 mg/L; TAN 94 mg/L; TDS 3,300 mg/L. The storm water

pond was not emptied between these two dates, and therefore any discharge from the storm water

pond between these dates is contaminated and deleterious.





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violation.

FIFTY-NINTH CAUSE OF ACTION












Department of Fish and Wildlife. See photographs attached as Exhibit 30. Video available.






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SIXTIETH OF ACTION










pass into the waters of the state, the tributary to Fisher Creek and Fisher Creek. See photographs

attached as Exhibit 30. Video available.











violation.

//

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SIXTY-FIRST CAUSE OF ACTION












Department of Fish and Wildlife. Test Results: TSS 326 mg/L; TAN 8.9 mg/L; TDS 550 mg/L.







SIXTY-SECOND CAUSE OF ACTION







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pass into the waters of the state, the tributary to Fisher Creek and Fisher Creek. Test Results:

TSS 326 mg/L; TAN 8.9 mg/L; TDS 550 mg/L.











violation.

SIXTY-THIRD CAUSE OF ACTION






301. Since before 2012, but for purposes of this complaint, on or about, and on each day

between, January 6, 2012, and November 15, 2016, Defendants stored their spent compost in

large piles on the bare ground in the northeast field at the MORGAN HILL facility. This is

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documented by Google earth images and direct observations from residents in the area. As

described in the Sixty-Two Causes of Action above, the leachate or runoff from spent compost,

also known as spent mushroom substrate, is deleterious; it is also a pollutant under the Clean

Water Act due to its high ammonia, phosphates, nitrate and nitrite levels, dissolved solids and

high turbidity. The continuous placement of the spent compost piles where the leachate or runoff

flows into the tributary to Fisher Creek, and then into Fisher Creek is a deposit of a waste where it

may pass into a stream, the tributary to Fisher Creek and Fisher Creek, without prior written

notification to the California Department of Fish and Wildlife. The California Department of Fish

and Wildlife defines the rain season in California as being between October 1 through April 30,

which is two hundred and twelve (212) days each year. For each day during the rain season that

the spent compost is placed where the leachate may pass into the tributary to Fisher Creek is a

separate violation. Therefore, there is a total of one thousand and nine (1,009) days of violation

between January 6, 2012, and November 15, 2016. See photograph attached as Exhibit 31.

302. As a result of the Tolling Agreement described in paragraph 5, the tolling period

from January 5, 2016, to the date this Complaint is filed, is not included in the statute of

limitation applicable to this Cause of Action.







//

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SIXTY-FOURTH CAUSE OF ACTION






between, January 6, 2012, and November 15, 2016, Defendants stored their spent compost in

large piles on the bare ground in the northeast field at the MORGAN HILL facility. This is

documented by Google earth images and direct observations from residents in the area. As

described in the Sixty-Two Causes of Action above, the leachate or runoff from spent compost,

also known as spent mushroom substrate, is deleterious; it is also a pollutant under the Clean

Water Act due to its high ammonia, phosphates, nitrate and nitrite levels, dissolved solids and

high turbidity. The continuous placement of the spent compost piles where the leachate or runoff

flows into the tributary to Fisher Creek, and then into Fisher Creek is the placement of a

deleterious substance where it can pass into the waters of the state, the tributary to Fisher Creek

and Fisher Creek. The California Department of Fish and Wildlife defines the rain season in

California as being between October 1 through April 30, which is two hundred and twelve (212)

days each year. For each day during the rain season that the spent compost is placed where the

leachate may pass into the tributary to Fisher Creek is a separate violation. Therefore, there is a

total of one thousand and nine (1,009) days of violation between January 6, 2012, and November

15, 2016. See photograph attached as Exhibit 31.





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5650.1, subdivision (a), and (b) as set forth in Plaintiff’s prayer for relief, for each day of

violation.

SIXTY-FIFTH CAUSE OF ACTION







between, October 1, 2015, and April 30, 2016, Defendants prepared their compost in the substrate

processing area in the southwest corner of the MORGAN HILL facility. On January 5, 2016, the

piles of compost, called ricks, were within fifty (50) feet of Fisher Creek, and the Wardens

observed leachate or runoff from the compost piles entering Fisher Creek through breaks in the

cement curb at the bridge. See photograph attached as Exhibit 32 and 33.

312. The compost is made from, among other things, used hay from horse stables, clean

hay, and poultry manure and is watered down daily with process water. Process water has the

same components as spent compost leachate but usually in much higher concentrations. (Test

results: January 4, 2017, TSS 214 mg/L; TAN 110 mg/L). The continuous placement of compost

piles where the leachate and process water, which is deleterious, may flow into Fisher Creek

during the rain season, is a deposit of a waste where it may pass into a stream, Fisher Creek,

without prior written notification to the California Department of Fish and Wildlife. The

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California Department of Fish and Wildlife defines the rain season in California as being between

October 1 through April 30, which is two hundred and twelve (212) days each year. For each day

during the rain season between October 1, 2015, and April 30, 2016, that the compost is placed

where the leachate and process water may pass into Fisher Creek is a separate violation.

Therefore, there is a total of two hundred and twelve (212) days of violation.










SIXTY-SIXTH CAUSE OF ACTION






between, October 1, 2015, and April 30, 2016, Defendants prepared their compost in the substrate

processing area in the southwest corner of the MORGAN HILL facility. On January 5, 2016, the

piles of compost, called ricks, were within fifty (50) feet of Fisher Creek, and the Wardens

observed leachate or runoff from the compost piles entering Fisher Creek through breaks in the

cement curb at the bridge. See photograph attached as Exhibit 32 and 33.

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318. The compost is made from, among other things, used hay from horse stables, clean

hay, and poultry manure and is watered down daily with process water. Process water has the

same components as spent compost leachate but usually in much higher concentrations. (Test

results: January 4, 2017, TSS 214 mg/L; TAN 110 mg/L). The continuous placement of compost

piles where the leachate and process water, which is deleterious, may flow into Fisher Creek

during the rain season, is the placement of a deleterious substance where it can pass into the

waters of the state, Fisher Creek. The California Department of Fish and Wildlife defines the rain

season in California as being between October 1 through April 30, which is two hundred and

twelve (212) days each year. For each day during the rain season between October 1, 2015, and

April 30, 2016, that the compost is placed where the leachate and process water may pass into

Fisher Creek is a separate violation. Therefore, there is a total of two hundred and twelve (212)

days of violation.









5650.1, subdivision (a), and (b) as set forth in Plaintiff’s prayer for relief, for each day of

violation.

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SIXTY-SEVENTH CAUSE OF ACTION

BUSINESS AND PROFESSIONS CODE SECTION 17200 et seq.

(Violation of Unfair Competition Laws)



323. On or about, and on each day between January 6, 2012 to the present, Defendants,

and each of them, have engaged in, and continue to engage in, unlawful acts, omissions, and

practices that constitute unfair competition within the meaning of Business and Professions Code

sections 17200 through 17208, including but not limited to, the acts and omissions and practices

alleged in paragraphs 3 through 322, inclusive, and in the First through Sixty-Sixth Causes of

Action, above, and incorporated herein by reference, and unless enjoined by order of the Court,

Defendants, and each of them, may or will continue in the course of conduct as alleged herein.

324. The acts of unfair competition as alleged herein, occurred during and as a

consequence of Defendants’ business acts and practices of growing, processing, and shipping

mushrooms, and each violation of the California Fish and Game Code are unlawful acts and/or

unfair business practices. Any unlawful business act or practice, which includes violations of the

California Fish and Game Code, is unfair competition and is a separate and distinct violation of

California Business and Professions Code Section 17200 et seq.


from January 5, 2016, to the date this Complaint is filed, is not included in the applicable statute

of limitation applicable to this Cause of Action.


Defendants, and each of them, under Business and Professions Code section 17203 and any

orders the Court deems necessary to prevent unfair competition, including appointment of a

receiver and civil penalties pursuant to Section 17206, as set forth in Plaintiff’s prayer for relief,

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for each and every separate act of unfair competition as alleged herein.

SIXTY-EIGHTH CAUSE OF ACTION

DAMAGES - FISH AND GAME CODE SECTION 12016



328. Defendants, and each of them, intentionally discharged large volumes of

deleterious contaminated storm water and process water at the MORGAN HILL facility. Fish

and Game Code section 12016 specifies an additional civil liability for all actual damages to fish,

plant, bird, or animal life or, their habitat. California Department of Fish and Wildlife

Environmental Scientists have prepared a report titled, ‘Natural Resource Damage Assessment:

Monterey Mushrooms Waste Discharges, Monterey and Santa Clara Counties’ which estimates

the damage to the natural resources at Fisher Creek. The People on information and belief allege

the environmental damage to Fisher Creek and Coyote Creek as $335,068.00.

PRAYER FOR RELIEF

WHEREFORE, the People request the following relief as to each defendant:

1. Temporary, preliminary and permanent injunctive relief against Defendants, and

each of them, under Fish and Game Code sections 5650(a)(6), 5650.1, subdivision (e) and (f),

1602 and 1615, subdivision (e)(1) and (2), prohibiting any and all discharges, releases, leaks, or

runoff of deleterious process water, contaminated storm water or any other contaminant from the

production and distribution of mushrooms at the MORGAN HILL facility, from entering Fisher

Creek or any tributary to Fisher Creek, this includes the discharge of contaminated water onto or

into, any field, dirt, cement, or asphalt that allows contaminated water to flow into Fisher Creek;

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1602 and 1615, subdivision (e)(1) and (2), prohibiting Defendants, and each of them, from any

discharge of process water or contaminated storm water without first notifying the People twenty-

four hours in advance of any discharge, release, or dumping of process water or contaminated

storm water at the MORGAN HILL facility that will enter Fisher Creek or any tributary to Fisher

Creek, and conducting all required testing pursuant to the California Regional Water Quality

Control Board, San Francisco Bay Regions, Waste Discharge Requirements (WDR) for the

MORGAN HILL facility, and providing the results of the testing to the People within forty-eight

hours of the discharge;



1602 and 1615, subdivision (e)(1) and (2), prohibiting the continued operation of the MORGAN

HILL facility without the full and permanent containment and lawful disposal of all process

water, contaminated storm water and storm water generated, used or stored at Defendants’

MORGAN HILL facility;

4. A permanent injunction, issued pursuant to Business and Professions Code sections

17203 and 17204, prohibiting Defendants, and each of them, including MONTEREY

MUSHROOMS’ officers, directors, employees, agents, successors, assignees and representatives,

and all natural persons, partnerships, corporations, subsidiaries or other entities acting for, under,

by, through or on behalf of Defendant MONTEREY MUSHROOMS, from engaging in activity

that violates the provisions of California Fish and Game Code sections 1602 and 5650, including,

but not limited to, the unlawful business acts alleged in the Sixty-Seven Causes of Action in this

Complaint, which thereby constitute unfair competition within the meaning of Business and

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Professions Code section 17200;

5. Civil penalties of Twenty-Five Thousand Dollars ($25,000.00) against Defendants,

and each of them, for each and every violation of California Fish and Game Code sections

1602/1615, according to proof, in an amount not less than Twenty-Six Million One Hundred

Seventy-Five Thousand Dollars ($26,175,000.00);

6. Civil penalties of Twenty-Five Thousand Dollars ($25,000.00) against Defendants,

and each of them, for each and every violation of California Fish and Game Code sections

5650/5650.1(a) and (b), according to proof, in an amount not less than Twenty-Five Million Nine

Hundred Thousand Dollars ($25,900,000.00);

7. Civil penalties of Ten Dollars ($10.00) against Defendants, and each of them, for

each and every gallon of deleterious waste discharged to the waters of the state, pursuant to

California Fish and Game Code sections 5650/5650.1(i), according to proof, in an amount not less

than Thirty-Four Million Five Hundred Sixty Thousand Dollars ($34,560,000.00);

8. Civil penalties of Two Thousand Five Hundred Dollars ($2,500.00) against

Defendants, and each of them, for each and every violation of Business and Professions Code

section 17200, according to proof, as alleged in the Sixty-Seven Causes of Action in this

Complaint, a civil penalty of no less than Six Million Two Hundred Sixty-Two Thousand Five

Hundred Dollars ($6,262,500.00);

9. Damages against Defendants, and each of them, pursuant to California Fish and

Game Code section 12016, according to proof, of no less than Three Hundred Thirty-Five

Thousand Sixty-Eight Dollars ($335,068.00);

10. Defendants, and each of them, make full cy pres restitution to all victims of

Defendants’ acts of unfair competition.

11. Recovery of all costs of suit, including investigation, discovery and prosecution.

1 12. Such other and further relief as the nature of the case may' require and the Court

2 deems appropriate to dissipate the effect of the unlawful acts complained of herein.

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District Attorney County of Santa Clara San Jose, CA 95 110

Dated: JEFFREY F. ROSEN I I District Attorney, County of Santa Clara

By:

Denise J . Raabe

Deputy District Attorney

SEE CODE OF CIVIL PROCEDURE SECTION 446 REGARDING VERIFICATION OF THE ANSWER.

72 COMPLAINT FOR INJUNCTION, CIVIL PENAL TIES, AND OTHER EQUITABLE RELI EF

EXHIBIT 1

Exhibit 1: 1/5/16 – Process water and compost leachate entering Fisher Creek at compost processing area.

Fisher Creek

Compost Pile

Leachate

EXHIBIT 2


Compost Pile

Compost Leachate

Fisher Creek

EXHIBIT 3


Compost Leachate

Compost Leachate

Compost Leachate Fisher Creek

EXHIBIT 4

Exhibit 4: 1/27/16 – Production waste discharge from basket cleaning area into Fisher Creek.

Fisher Creek Culvert-Production waste

EXHIBIT 5

Exhibit 5: 1/31/16 – Hand dug ditch discharging waste from used hay bales into Fisher Creek.

Used Hay Bales

Hand Dug Ditch

Waste

Hand Dug Ditch

EXHIBIT 6

Exhibit 6: 1/31/16 – Tributary to Fisher Creek containing leachate from spent compost piles entering Fisher Creek.

Tributary entering Fisher Creek

Fisher Creek

EXHIBIT 7

Exhibit 7: 2/25/16 – Disturbed soil in tributary to Fisher Creek near process water storage tanks.

Fisher Creek

Tributary

EXHIBIT 8

Exhibit 8: 2/25/16 – Bank of tributary to Fisher Creek along Miramonte Avenue flattened or levelled.

Levelled Bank

EXHIBIT 9

Exhibit 9: 3/3/16 – Dirt and rock piles in tributary to Fisher Creek near process water storage tanks.

Dirt & Rocks

Tributary

EXHIBIT 10

Exhibit 10: 3/5/16 – Discharge of production waste into Fisher Creek.

Fisher Creek

Production Waste

EXHIBIT 11

Exhibit 11: 3/6/16 – Leachate from spent compost piles flowing across field and entering tributary to Fisher Creek along Miramonte Avenue.

Leachate

Tributary

EXHIBIT 12

Exhibit 12: 3/6/16 – Tributary to Fisher Creek along Miramonte Avenue with leachate from spent compost entering Fisher Creek.

Tributary

Leachate

Fisher Creek

EXHIBIT 13

Exhibit 13: 3/6/16 – Overflowing process water pump discharging into tributary to Fisher Creek near process water tanks.

Process water from pump

Flow to Tributary

EXHIBIT 14

Exhibit 14: 3/6/16 – Process water and contaminated storm water flowing in tributary to Fisher Creek near process water storage tanks. Fisher Creek upper right corner.

Contaminated water

Fisher Creek

EXHIBIT 15

Exhibit 15: 3/7/16 – Leachate from spent compost piles flowing through field and entering tributary to Fisher Creek.

Spent Compost Piles

Leachate

Tributary

EXHIBIT 16

Exhibit 16: 3/7/16 – Culvert discharging process water and contaminated storm water into tributary to Fisher Creek near process water storage tanks.

Culvert

EXHIBIT 17

Exhibit 17: 10/16/16 – Process water storage tank leaking; discharging process water into tributary to Fisher Creek.

Leak

EXHIBIT 18

Exhibit 18: 11/1/16 – Hydroseeding (green) in bed of Fisher Creek.

EXHIBIT 19

Exhibit 19: 1/4/17 – Contaminated storm water where spent or used compost piles were historically stored.

Contaminated Water

EXHIBIT 20

Exhibit 20: 1/4/17 – Contaminated storm water from where spent or used compost piles were historically stored flowing into tributary to Fisher Creek.

Tributary

EXHIBIT 21

Exhibit 21: 1/7/17 – Contaminated storm water from where spent or used compost piles historically were stored entering Fisher Creek. Dark brown is contaminated storm water.

Fisher Creek

Contaminated Water Tributary

EXHIBIT 22

Exhibit 22: 1/7/17 – Four-inch pipe from storm water pond discharging contaminated storm water into Fisher Creek.

Fisher Creek

Pipe

EXHIBIT 23

Exhibit 23: 1/8/17 – Discharge of either process water or contaminated storm water into field next to Fisher Creek; contaminated water entered Fisher Creek.

Discharge

EXHIBIT 24


Fisher Creek

Pipe

EXHIBIT 25

Exhibit 25: 2/7/17 – Discharge of either process water or contaminated storm water into the field along Hale Avenue. Contaminated storm water flows through culvert, into tributaries to Fisher Creek, and then into Fisher Creek.

Discharge

EXHIBIT 26


Discharge

EXHIBIT 27

Exhibit 27: 2/19/17 – Close up of discharge from blue pipe.

EXHIBIT 28


Fisher Creek

Pipe

EXHIBIT 29


Pipe

Fisher Creek

EXHIBIT 30


Discharge

EXHIBIT 31

Exhibit 31: 1/27/16 – Spent compost piles at top of photograph, tributary to Fisher Creek in the middle. Culvert heads to Fisher Creek.

Tributary

Culvert

Compost Piles

EXHIBIT 32

Exhibit 32: 1/5/16 – Piles of compost at the compost processing area. Leachate and process water enter Fisher Creek which is on the left.

Compost Piles

Fisher Creek

Leachate/Process Water

EXHIBIT 33

Exhibit 33: 1/19/16 – Close up of leachate/process water at compost processing area.

Leachate/Process Water

18CV339948 - The Mercury News · 12/21/2018 · Defendant MONTEREY MUSHROOMS, Inc., is a...

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Transcript of 18CV339948 - The Mercury News · 12/21/2018 · Defendant MONTEREY MUSHROOMS, Inc., is a...