Filed 9/21/20 P. v. Walmart CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
THE PEOPLE,
Plaintiff and Respondent,
v.
A155886
WALMART INC.,
Defendant and Appellant.
(Alameda County
Super. Ct. No. RG18-901345)
Walmart Inc. (Walmart) challenges an order directing it to comply with
investigative interrogatories seeking information related to its hazardous
waste disposal policies and practices that potentially violate the Hazardous
Waste Control Law (HWCL) (Health & Saf. Code, § 25100 et seq.). It
contends the People’s interrogatories serve no relevant purpose because a
2010 consent judgment either resolved or barred investigation into any
violations. Because the interrogatories fall within the broad boundaries of
the People’s investigative power, and seek information related to potential
HWCL violations that are beyond the scope of the consent judgment, we
affirm the order.
BACKGROUND
The HWCL governs the handling, treatment, recycling, and destruction
of hazardous waste before disposal. (Health & Saf. Code, § 25101, subd. (a).)
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Hazardous waste generators face civil penalties for each day they are not in
compliance with the HWCL. (See id., §§ 25189, 25189.2.)
I. 2010 Lawsuit and Consent Judgment
Walmart operates retail facilities throughout California and sells
numerous retail products partially comprised of hazardous materials. In a
2010 lawsuit filed in San Diego County Superior Court, the People, led by the
Attorney General and various district attorneys throughout California,
alleged Walmart’s retail stores and distribution centers failed to properly
store, handle, transport, and dispose of hazardous waste and materials in
violation of the HWCL and Unfair Competition Law. (Health & Saf. Code,
§ 25100 et seq.; Bus. & Prof. Code, § 17200 et seq.; People v. Wal-Mart
Stores, Inc. (2010, No. 37-2010-00089145-CU-TT-CTL).) On April 6, 2010, the
parties stipulated to a consent judgment resolving claims of violations that
occurred on or before February 22, 2010.
The consent judgment “permanently enjoined [Walmart] to comply with
[the HWCL]” as well as 14 detailed injunctive provisions incorporating the
HWCL and its implementing regulations (Injunction). Five years from the
date of entry of the consent judgment, Walmart could request an order that
the Injunction “shall have no prospective force or effect . . . .” The court “may
grant Wal-Mart’s request upon determining that Wal-Mart has substantially
complied with the obligations set forth in the Consent Judgment.”
In November 2017, Walmart asserted it was in substantial compliance
and moved to terminate the Injunction. The People disputed Walmart’s
substantial compliance with the HWCL but agreed to eliminate the
Injunction. In its January 26, 2018 written decision, the San Diego court
agreed with the People and modified the consent judgment by eliminating the
Injunction, but declined to find Walmart was in substantial compliance.
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II. 2018 Alameda County District Attorney Investigation
In January 2018, the Alameda County District Attorney, pursuant to
Government Code section 11180 et seq. and Business and Professions Code
section 16759, served several investigative subpoenas and interrogatories on
Walmart. (See Gov. Code, § 11180 [“The head of each department may make
investigations and prosecute actions concerning: [¶] (a) All matters relating
to the business activities and subjects under the jurisdiction of the
department. [¶] (b) Violations of any law or rule or order of the department.
[¶] (c) Such other matters as may be provided by law”]; Bus. & Prof. Code,
§ 16759 [all powers granted to the Attorney General pursuant to Gov. Code,
§ 11180 et seq. are also granted to district attorneys].) The interrogatories
sought the identities and dates of operation for all of Walmart’s California
facilities; information for all current and former California Walmart store
managers, claims supervisors, and environmental health and safety
specialists from April 3, 2010, to the present—at that time January 19, 2018;
and information related to potential HWCL violations that the People
discovered through field inspections conducted between 2015 and 2017.
Walmart moved to quash the subpoenas, and for a protective order, in
the San Diego County Superior Court, which rejected the motion without
prejudice.1 The People then filed a petition in Alameda County Superior
1 The court ultimately rejected Walmart’s motion because its
“jurisdiction does not extend to new matters not encompassed by the
[consent] judgment.” Further, the court addressed that the People’s discovery
requests did not conflict with the January 26, 2018 order, that they were not
irrelevant, and that they did not violate the consent judgment. The court
noted the following: “The judgment distinguishes between ‘Covered Matters’
and ‘Reserved Claims.’ Violations that occur after February 22, 2010 are
Reserved Claims. [Citation.] Any claims for disposals of hazardous waste or
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Court (trial court) to compel Walmart’s responses to the interrogatories. The
trial court granted the petition and Walmart later appealed. After the trial
court and this court rejected Walmart’s various requests for a stay of the
order pending appeal, Walmart responded to the interrogatories.
DISCUSSION
Walmart argues the People’s investigation and interrogatories violate
the Fourth Amendment of the U.S. Constitution because the consent
judgment resolved or barred prosecution of any possible HWCL violations.
We disagree.
I. Mootness
At the outset, the People urge us to dismiss Walmart’s appeal as moot
because Walmart has answered the interrogatories. Although an appeal
should be dismissed if it cannot provide any effective relief, courts have the
discretion to consider a technically moot appeal if there may be a recurrence
of the controversy between the parties. (Panoche Energy Center, LLC v.
Pacific Gas & Electric Co. (2016) 1 Cal.App.5th 68, 95–96; Environmental
Charter High School v. Centinela Valley Union High School Dist. (2004) 122
Cal.App.4th 139, 144.) Here, the broader issue of whether the consent
judgment curtails the People’s investigatory powers is likely to recur and has
recurred. In addition to the interrogatories, the People served subpoenas on
Walmart store managers, requesting testimony about their waste
management practices. Walmart refused to comply with the subpoenas,
claims related to Walmart’s disposal of hazardous material that are
discovered after the judgment are not Covered Matters. [Citation.] The
judgment did not preclude the State from bringing a subsequent action on
Reserved Claims. . . . Based on these provisions, the judgment does not cover
violations that occur after February 22, 2010.”
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asserting the same arguments it made in its opposition to the interrogatories
and in this appeal. At the time the parties briefed this appeal, the People
had not yet filed a petition compelling enforcement of the subpoenas. We
thus exercise our discretion to consider the appeal.
II. Investigative Interrogatories
Turning to the merits, we review de novo whether the interrogatories
meet the standards for enforcement. (See State ex rel. Dept. of Pesticide
Regulation v. Pet Food Express (2008) 165 Cal.App.4th 841, 854 [standard of
review for administrative subpoenas].) There is considerable deference “to
administrative discretion and expertise” when assessing whether “an
administrative subpoena infringes upon interests protected by the Fourth
Amendment,” a “seldom successful” attack. (Cal. Restaurant Assn. v.
Henning (1985) 173 Cal.App.3d 1069, 1075.) All that is required is “the
inquiry be one which the agency demanding production is authorized to
make, that the demand be not too indefinite, and that the information sought
be reasonably relevant.” (Brovelli v. Superior Court (1961) 56 Cal.2d 524, 529
(Brovelli).)
There is no disagreement over the People’s authority to investigate
alleged HWCL violations by propounding investigative interrogatories. (See
Gov. Code, §§ 11180, 11181, subd. (f) [investigative interrogatories];
Bus. & Prof. Code, § 16759; Health & Saf. Code, §§ 25182, 25189 [authorizing
district attorneys to bring civil actions for violations of HWCL].) Nor is there
a dispute that the requests—focused on identifying California facilities, store
managers, claims supervisors, and environmental health and safety
personnel from April 3, 2010, to January 19, 2018—were sufficiently specific
to allow a response. (See State Water Resources Control Bd. v. Baldwin &
Sons, Inc. (2020) 45 Cal.App.5th 40, 57 (Baldwin).)
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Relying primarily on the consent judgment and a purported finding
that Walmart was in substantial compliance with the HWCL, Walmart
instead contends the People’s investigation and interrogatories are not
reasonably relevant to any legitimate investigative purpose, thus infringing
its rights under the Fourth Amendment. Similarly to the trial court, we find
these arguments unconvincing, and we address each in turn.
A. Consent Judgment
Walmart argues as follows. The consent judgment bars the People’s
independent investigation of potential HWCL violations that occurred from
February 22, 2010, to January 26, 2018, the date the San Diego court
eliminated the Injunction. Rather than initiate a new investigation of those
claims, Walmart contends the People were required to pursue any potential
claims of violations occurring before January 26, 2018, through the
enforcement procedures outlined in the consent judgment. When the People
failed to pursue those claims before the San Diego court eliminated the
Injunction, the People waived their right to investigate those claims.
But the consent judgment’s plain terms contradict Walmart’s
argument. Paragraph 7.1 states the consent judgment resolved all claims
occurring on or before February 22, 2010—“Covered Matters.” That
paragraph further states the consent judgment does not cover “Reserved
Claims,” which “include, without limitation, any violation that occurs after
February 22, 2010 . . . .” (Italics added.) The People’s interrogatories sought
information about Walmart and HWCL violations occurring on or after
April 3, 2010, which Walmart admits constitute an examination of “Reserved
Claims.” Under these terms, the investigation concerns claims beyond the
scope of the consent judgment.
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Nothing in the consent judgment bars the People’s investigation or
requires them to pursue “Reserved Claims” through its enforcement
provisions. (See e.g., paragraph 7.1 [expressly reserving the People’s right to
pursue “Reserved Claims”].) Under paragraph 6, “[t]he People may move
[the] Court for additional relief for any violation of any provision of [the]
Consent Judgment” even for claims that were covered by the consent
judgment, but it does not require any such action. (Italics added.) (See Jones
v. Catholic Healthcare West (2007) 147 Cal.App.4th 300, 307 [“Courts
routinely construe the word ‘may’ as permissive and words like ‘shall’ or
‘must’ as mandatory”].) Paragraph 6 further declares nothing in it “shall
limit any rights of the People to seek any other relief or remedies provided by
law . . . .”
Although Walmart acknowledges these provisions, it fails to explain
how the People waived an investigation into these Reserved Claims when the
claims are not, by their plain terms, within the scope of the consent
judgment. If Walmart intended the consent judgment to address HWCL
violations through the termination of the Injunction—January 26, 2018—it
could have negotiated to incorporate that provision. (See Ritzenthaler v.
Fireside Thrift Co. (2001) 93 Cal.App.4th 986, 991.) It did not, and we do not
rewrite the consent judgment to expand the period of time for Covered
Claims for Walmart.
B. Substantial Compliance
Walmart next contends an investigation of hazardous waste
management violations between April 3, 2010, and January 2018 serves no
reasonable purpose because the People conceded, and the San Diego court
necessarily concluded, that Walmart substantially complied with the HWCL
during that period. The record does not support Walmart’s position.
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Paragraph 24 of the consent judgment allows the court to grant
Walmart’s request for an order that the injunctive provisions “shall have no
prospective force or effect” “upon determining that Wal-Mart has
substantially complied with the obligations set forth in the Consent
Judgment.” In response to Walmart’s motion under that paragraph, the
People asserted Walmart was not in substantial compliance. They claimed
Walmart improperly disposed of hazardous waste it deemed as presenting a
low-level risk to humans and each instance of illegal disposal demonstrated a
failure to substantially comply with the consent judgment requirements of
handling, transporting, and managing hazardous waste. Although the People
stipulated to modify the consent judgment by eliminating the Injunction, they
expressly disavowed any acknowledgment “that Walmart [was] in compliance
with the HWCL or that Walmart [had] met its burden under Paragraph 24 of
the Consent Judgment to establish that it is in substantial compliance with
the terms of the Consent Judgment . . . .”2
The San Diego court also declined to find Walmart in substantial
compliance. The written decision eliminated the Injunction and stated this
modification rendered it “unnecessary to determine whether Wal-Mart
substantially complied with the judgment.” It reasoned that “if the injunctive
provisions are removed, there is no need for an order under paragraph 24
2 Walmart forfeited its argument the People are estopped from
investigating potential HWCL claims because they implicitly conceded
Walmart complied with that statute by agreeing to eliminate the
Injunction—a contention raised for the first time on appeal. (See Mattco
Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.)
Considering a purely legal question with no factual determinations for the
first time on appeal is a matter of discretion, and we decline to consider
Walmart’s argument here. (Resolution Trust Corp. v. Winslow (1992) 9
Cal.App.4th 1799, 1810.)
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that the injunctive provisions have no prospective effect.” Thus, contrary to
Walmart’s assertions, eliminating the Injunction did not require the court to
necessarily make a substantial compliance finding.
Although Walmart supports its argument by quoting liberally from the
San Diego court’s comments made during a hearing on Walmart’s motion,
those statements, as Walmart acknowledges, cannot impeach the court’s final
written decision. (See Valero Refining Co.–California v. Bay Area Air Quality
Management Dist. Hearing Bd. (2020) 49 Cal.App.5th 618, 644, fn. 24.)
Moreover, even if we were to assume the San Diego court made a substantial
compliance determination, it would not limit the People’s authority to
investigate potential HWCL violations during the period specified in its
interrogatories. (See Brovelli, supra, 56 Cal.2d at p. 529 [authority to
“compel the production of evidence for purposes of investigation” does not
depend on a “controversy in order to get evidence” since investigations are
allowed “ ‘merely on suspicion that the law is being violated’ ” or simply for
assurances that it is not].) The trial court properly found Walmart’s
compliance with the HWCL a disputed matter and not a sufficient basis to
object to the requested information.
C. Scope
Walmart next complains the interrogatories were not reasonably
related to the nature and date of alleged HWCL violations being investigated.
We reject both arguments.
First, Walmart claims the hazardous waste—alkaline batteries, small
electronics, lightbulbs, soap, hair care products, and makeup—that a few
Walmart facilities admittedly sent to California landfills did not pose a
substantial risk to human health or the environment and was not indicative
of systemic problems in Walmart’s disposal practices that could justify a
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statewide investigation. But courts broadly construe the relevance of
information sought through administrative investigative tools. (See Baldwin,
supra, 45 Cal.App.5th at p. 57 [the term “relevance” permits access to
“ ‘ “virtually any material that might cast light on the allegations” ’ ” against
a violator].) The People were not required to demonstrate, before they
requested the information, that the information reveals a potential violation.
(See ibid. [no formal charges or proceedings needed to compel production of
evidence].) “At this investigative stage, the precise character and scope of
possible violations (and possible violators) may not be known.” (Id. at p. 59.)
Here, the People began their investigation to determine whether
Walmart was committing violations of the HWCL in Alameda County and
throughout California and if so, what various allegations would be made in a
complaint. To the extent the People initiated the investigation based on
evidence of a few confirmed incidents of improper waste disposal, that was
sufficient. (See Brovelli, supra, 56 Cal.2d at p. 529 [investigations may be
commenced on mere suspicion the law is being violated].) The requests
seeking statewide information were reasonably relevant to the People’s
inquiry to determine the scope of Walmart’s potential violations, regardless of
the severity of known HWCL violations or whether certain conduct actually
constituted a violation. (See Baldwin, supra, 45 Cal.App.5th at p. 58
[requests seeking the scope of violations are reasonably relevant to
determining whether specific charges are warranted].)
Second, and for the same reason, we reject Walmart’s claim the
temporal scope of information sought—dating back to April 2010— was not
relevant to the People’s investigation because the statute of limitations bars
prosecution of any HWCL claims before 2013. Information sought in an
investigation need not be tethered to a potential prosecution. (See Younger v.
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Jensen (1980) 26 Cal.3d 397, 406 [Attorney General investigative subpoenas
issued to determine whether to formulate an enforcement policy].) Further,
as Walmart concedes, the requested information may be relevant and
discoverable even if it is not ultimately admissible in subsequent proceedings.
As the trial court, we recognize the interrogatories asked for the identities of
potential witnesses who would be knowledgeable about Walmart’s level of
compliance with the HWCL, more recent conduct that violates the HWCL, or
the identities of additional witnesses. It was thus relevant to the People’s
investigation, even if they did not seek penalties for violations dating back to
2010. (See Baldwin, supra, 45 Cal.App.5th at p. 57.)
We do not address the People’s remaining arguments.
DISPOSITION
The order is affirmed.
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_________________________
Jackson, J.
WE CONCUR:
_________________________
Siggins, P. J.
_________________________
Fujisaki, J.
A155886/People v. Walmart Inc.
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