Syngenta Crop Protection, Inc. v. Helliker (138 Cal. App. 4th 1135, 2006)

Opinion

CROSKEY, J.

Syngenta Crop Protection, Inc. (Syngenta), developed a substance known as metalaxyl, and Dow Agrosciences LLC (Dow) developed a substance known as oryzalin, both used as active ingredients in pesticides. Syngenta and Dow submitted to the state Department of Pesticide Regulation (the Department) data concerning the health effects and environmental impacts of the active ingredients and obtained certificates of registration from the Department for products containing metalaxyl and oryzalin. Gustafson LLC (Gustafson), a pesticide manufacturer, later obtained registrations from the Department for pesticides containing metalaxyl, and other companies obtained registrations for pesticides containing oryzalin. Although the Department did not actually review data previously submitted to the Department by Syngenta and Dow to support the applications for registration by Gustafson and other subsequent applicants, the Department took into account its prior evaluation of those data in evaluating the later applications. Syngenta challenged the registrations and the Department’s practices by filing a complaint and petition for writ of mandate in the superior court seeking declaratory and injunctive relief and a writ of mandate, and Dow did the same. Syngenta and Dow allege that in evaluating applications for registration, the Department “considered” data that Syngenta and Dow previously submitted to the Department, without their consent, in violation of former Food and Agricultural Code section 12811.5.

On cross-motions for summary judgment or summary adjudication in the consolidated proceedings, the court awarded declaratory relief in favor of Syngenta and Dow, declaring that former Food and Agricultural Code section 12811.5 prohibited the Department from considering, “actively or passively,” data submitted by an original registrant when considering a subsequent application for registration by another applicant who had not obtained the original registrant’s written consent. The court did not determine whether the Department violated former section 12811.5, however, and denied injunctive relief. The court rejected other challenges to pesticide registrations and regulatory actions and granted summary adjudication against all counts other than the count for declaratory relief. Syngenta, Dow, the Department, and Gustafson all appeal the judgment.

We conclude that former Food and Agricultural Code section 12811.5 prohibited the consideration of data by the Department in the manner at issue here. We also conclude that there are triable issues of material fact as to whether the Department violated former section 12811.5, whether the Department’s use of trade secret data constitutes an unconstitutional taking, and whether Syngenta and Dow are entitled to an injunction under the Uniform Trade Secrets Act (Civ. Code, § 3426 et seq.); that Syngenta and Dow cannot establish a violation of the equal protection clause; and that the sustaining of demurrers to Syngenta’s count for a writ of mandate, was error. We conclude further that the Department failed to comply with procedural requirements of the Administrative Procedures Act (Gov. Code, § 11340 et seq.; APA) in adopting regulations and failed to comply with the Department’s own regulation requiring public notice of regulatory amendments, and that the regulations are invalid.

FACTUAL AND PROCEDURAL BACKGROUND

1. Factual Background

Syngenta, through a corporate predecessor, invented metalaxyl and obtained its first registration of a pesticide product containing metalaxyl from the United States Environmental Protection Agency (U.S. EPA) in 1979 and from the Department in 1982. Syngenta submitted numerous studies concerning the chemistry, health effects, and environmental impacts of the substance in support of the federal and state registrations, as required by law. Syngenta no longer manufactures metalaxyl and now manufactures a replacement product known as mefenoxam. Syngenta notified the Department in May 1998 that it would not authorize the consideration of data previously submitted by Syngenta concerning metalaxyl to support any registration by another applicant.

Gustafson manufactures pesticide products known as Allegiance FL, Raxil XT, and Raxil MD, all containing metalaxyl. Allegiance FL was formerly known as Apron FL. Gustafson obtained its first California registration of Apron FL in 1984. Gustafson purchased metalaxyl from Syngenta at that time and obtained written authorization from Syngenta for the Department to consider data previously submitted by Syngenta to support the application for registration by Gustafson. Gustafson now purchases metalaxyl from another company, Nations Ag II, LLC (Nations Ag).

Gustafson applied to the Department to amend the registration of Allegiance FL in 1998 and applied for registration of the Raxil products in 2000. The Department issued notices in May 1999 and July 2001 stating that it intended to approve the applications. Gustafson withdrew the applications for registration of the Raxil products in August 2001, after Syngenta commenced this proceeding (case No. BC253673), and submitted new applications in November 2001. Gustafson submitted several studies concerning the health effects of the products in support of its applications and submitted a letter of authorization from Nations Ag allowing the Department to consider data previously submitted by Nations Ag concerning metalaxyl. Gustafson did not submit data previously submitted by Syngenta, refer the Department to data previously submitted by Syngenta in the Department’s files, or obtain written authorization from Syngenta for the Department to consider data previously submitted by Syngenta.

Dow invented oryzalin and obtained registrations of pesticide products containing oryzalin from the U.S. EPA and the Department. Nations Ag and other companies later applied to the Department for registration of products containing oryzalin, but did not obtain written authorization from Dow for the Department to consider data previously submitted by Dow in support of the applications. The Department issued notices stating that it intended to approve the applications.

2. Trial Court Proceedings

Syngenta filed a combined complaint and petition for writ of mandate in the superior court in July 2001 (case No. BC253673). In its second amended complaint and petition filed in January 2002, Syngenta alleged that Gustafson’s applications for registration were incomplete because they were not supported by the required data and that the Department improperly was considering or had considered data previously submitted by Syngenta to support the applications by Gustafson, without Syngenta’s consent. Syngenta alleged counts for (1) a peremptory writ of mandate directing the Department to deny Gustafson’s applications for registration of Raxil MD and Raxil XT, its application to amend the registration of Allegiance FL, and any application for a renewed registration of those products or of Apron FL, and to set aside the prior registration of Allegiance FL; (2) violation of former Food and Agricultural Code section 12811.5 and California Code of Regulations, title 3, section 6170, seeking a prohibitory injunction; (3) violation of the Uniform Trade Secrets Act, seeking a prohibitory injunction; (4) unlawful taking without just compensation under the United States and California Constitutions; (5) violation of the equal protection clauses of the United States and California Constitutions; and (6) declaratory relief, seeking a declaration that the Department’s past, present, and future consideration of data previously submitted by Syngenta in support of an application for registration by another applicant, without Syngenta’s consent, is unlawful.

Gustafson and the Department demurred, arguing with respect to the first count that mandamus was not available to compel the Department to perform a discretionary act in a particular manner. The court sustained the demurrers to the first count without leave to amend in March 2002 and later overruled the demurrers to other counts.

3. Product Registrations

The Department issued conditional registrations for the Raxil products in April 2002. The registrations were conditioned on Gustafson’s submission of certain data. The Department apparently later issued renewed registrations for all three products.

4. California Notice 2002-3 and Regulatory Amendments

The Department issued California notice 2002-3 (the Notice) in April 2002 describing the general data requirements for registration of a new pesticide product containing a currently registered active ingredient. The Notice stated, “Some have incorrectly assumed that DPR [Department] has the same data requirements for registration actions, such as amendments to currently registered pesticides and new products containing currently registered active ingredients, as it does for new pesticide products containing new active ingredients. This notice is intended to correct any misconceptions and to restate DPR’s existing general data requirements for pesticide products.” The Department provided no prior notice of the proposed Notice or opportunity to comment on the proposal as provided under the rulemaking provisions of chapter 3.5, article 5 of the APA (Gov. Code, § 11346 et seq.).

The Department proposed amendments to regulations in April and July of 2002 and characterized the amendments as changes without regulatory effect (Cal. Code Regs., tit. 1, § 100). The Department proposed to amend section 6170, subdivision (a) of title 3 of the California Code of Regulations, pertaining to registration of pesticide products, by adding the italicized language: “All data submitted by the applicant to the U.S. EPA in support of federal registration of the product shall be submitted and all studies shall be submitted in full.” (Italics added.) The Department proposed to amend section 6172, subdivision (a) by deleting the bracketed language: “The following data shall be submitted with every application for registration, [ft] (1) Acute oral and dermal LD[50] data on the product [and active ingredients], [ft] (2) Acute LC[50] data on products which produce respirable aerosols or gases, [ft] (3) Primary eye and skin irritation data on the product [and active ingredients].” The Department also proposed to amend section 6200, subdivision (c) by deleting the bracketed language: “No conditional registration shall be granted unless the data includes all of the following: [ft] (1) Acute oral and dermal LD[50] data on the product [and active ingredients], [ft] (2) Acute LC[50] data on products which produce respirable aerosols or gases, [ft] (3) Primary eye and skin irritation data on the product [and active ingredients].” The Department provided no notice of the proposed amendments or opportunity to comment on the proposals as provided under the rulemaking provisions of the APA, and did not prepare a “public report” as provided under the Department’s regulations (Cal. Code Regs., tit. 3, § 6170). The Office of Administrative Law approved the amendments in June and August of 2002.

5. Further Trial Court Proceedings

Dow filed a combined complaint and petition for writ of mandate in the superior court in September 2002 (case No. BS078342). Dow alleged counts for (1) a peremptory writ of mandate directing the Department to refrain from considering data previously submitted by Dow in support of applications for registration by other applicants, without Dow’s consent, and to deny applications for registration of certain products containing oryzalin or set aside completed registrations; (2) declaratory relief, seeking declarations that the Department’s consideration of data previously submitted by Dow in support of an application for registration by another applicant, without Dow’s consent, is unlawful, and that applications for registration of products containing oryzalin by other applicants were incomplete and should be denied; (3) a permanent injunction to prevent the Department from considering data previously submitted by Dow in support of applications for registration by other applicants, without Dow’s consent, and to require the Department to deny applications for registration of certain products containing oryzalin or set aside registrations; (4) violation of the Uniform Trade Secrets Act, seeking a prohibitory injunction; (5) unlawful taking without just compensation under the United States and California Constitutions; (6) violation of the equal protection clauses of the United States and California Constitutions; and (7) violation of the APA by adopting amendments to sections 6170, 6172, and 6200 of title 3 of the California Code of Regulations, and issuing the Notice, without providing public notice and an opportunity to comment. Dow also challenged the regulatory amendments and the Notice on the ground that they conflicted with former Food and Agricultural Code section 12811.5.

The superior court entered an order in November 2002 determining that the two proceedings were related and assigned the cases to the same judge, and consolidated the two proceedings for all purposes in January 2003. Dow dismissed its count for a peremptory writ of mandate without prejudice in February 2003, and dismissed the complaint against Nations Ag and the other manufacturers after Dow provided a letter of authorization for the Department to consider data previously submitted by Dow.

Syngenta and Dow jointly moved for summary judgment or summary adjudication in October 2003. The Department moved for summary judgment or summary adjudication in both proceedings, and Gustafson also moved for summary judgment or summary adjudication. The trial court granted summary adjudication in favor of Syngenta and Dow on the count for declaratory relief with respect to Food and Agricultural Code section 12811.5, stating that the plain meaning of section 12811.5 is that the Department cannot consider, “actively or passively,” data submitted by an “original registrant” to support an application for registration by another applicant, without the written consent of the original registrant. The court granted summary adjudication in favor of the Department and Gustafson on “all remaining causes of action,” stating that there was no showing of imminent danger of irreparable harm to support an injunction; that the Department’s “passive consideration” of data previously submitted by Syngenta did not constitute misappropriation under the Uniform Trade Secrets Act; that there was no constitutional taking as a matter of law, and that if there were a taking the remedy would be an action for inverse condemnation; and that there was no equal protection violation. The order did not address Gustafson’s argument that Syngenta failed to exhaust its administrative remedies under Food and Agricultural Code sections 12825 and 12827, and did not specifically address Dow’s challenges to the validity of the regulatory amendments and the Notice.

6. Judgment and Postjudgment Motions

The court entered a judgment in March 2004 declaring, “the Department may not, actively or passively, use or consider an original registrant’s data in support of a subsequent application for registration of a pesticide product without the data owner’s consent. The court does not adjudicate what data is required to be submitted by an applicant with, or considered by the Department in connection with, any particular application to register a pesticide product.” The judgment also stated that summary adjudication was granted in favor of the Department and Gustafson on all other counts alleged by Syngenta and Dow.

Syngenta and Dow moved for a new trial and moved to modify the judgment, arguing that they were entitled to injunctive relief ordering the Department to set aside Gustafson’s product registrations and prohibiting the Department from considering their data in support of applications for registration by other applicants, without their consent. They also argued that the court should specifically address Dow’s challenges to the validity of the regulatory amendments and the Notice. The court denied the motions.

7. 2005 Statutory Amendment

The Legislature passed an amendment to Food and Agricultural Code section 12811.5 in September 2005, after oral argument in this appeal. (Stats. 2005, ch. 612, § 6.) The amendment completely rewrote the statute. The statute now states, in part, “The director may rely upon any evaluations of previously submitted data to determine whether to accept an application . . . regardless of the ownership of the data previously evaluated.” (Food & Agr. Code, § 12811.5.) Subdivision (a) states with respect to data currently required by the Department that if an applicant wishes to rely on data submitted by another entity after January 1, 1991, the applicant in certain circumstances must obtain written consent from the data owner, offer to pay the owner part of the cost of producing the data, or obtain the product from a source that, generally, has written consent from the owner or has offered to pay the owner part of the cost of producing the data. Subdivision (a) also states, “The director may rely upon data submitted prior to January 1, 1991 ... to support any application or comply with any formal re-evaluation request for additional data, without permission from the data owner.” (Food & Agr. Code, § 12811.5, subd. (a).) Subdivision (b) imposes an additional requirement for data required by the Department after January 1, 1991, but not currently required, and states that in certain circumstances the applicant must either submit the required data, obtain written consent from the owner of data submitted after January 1, 1991, to rely on the data, offer to pay the owner, or obtain the product from a permissible source. Subdivision (d) states that if the parties cannot agree on payment terms, the applicant, source, or data owner may initiate a proceeding under the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.; FIFRA) to determine the amount due. Subdivision (f) states that if an applicant fails to satisfy these requirements, “the director shall cancel the registration of the pesticide product in support of which the data was used.”

Food and Agricultural Code section 12811.5, subdivision (j) states, “No cost sharing as provided in subdivisions (a), (b), and (c) shall be required to support an application for annual renewal of a pesticide product registration, provided this provision shall not authorize renewal of a product registered prior to the effective date of this section if that registration is declared to have been unlawfully issued by a court of competent jurisdiction.”

CONTENTIONS

Syngenta and Dow contend (1) the Department uses or “considers,” within the meaning of former Food and Agricultural Code section 12811.5, data submitted in support of their applications for registration to support subsequent applications by others, without their consent, when the Department does not require the applicant to submit comparable data on the same active ingredient, even if the previously submitted data are neither submitted with nor referenced in the subsequent applications and the Department does not actually review the data in connection with those applications; (2) that use by the Department is an unconstitutional taking, and (3) violates the Uniform Trade Secrets Act; (4) the Department violates the equal protection clause by requiring the initial applicant for registration of a product containing an active ingredient to submit more data than is required of a subsequent applicant for registration of a product containing the same active ingredient; and (5) the denial of injunctive relief and a writ of mandate was error. Syngenta and Dow also contend (6) they were not required to exhaust the administrative remedies provided by Food and Agricultural Code sections 12825 and 12827 because the Department has no established procedure for administrative review under the statutes, because administrative review under the statutes, if available, would provide no effective relief for their claims, and for other reasons; and (7) the Notice and regulatory amendments (i) conflict with former Food and Agricultural Code section 12811.5, Food and Agricultural Code sections 12824 and 12825, and the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.; CEQA), and (ii) were not promulgated in compliance with the notice and comment procedures required by chapter 3.5, article 5 of the APA and the Department’s own regulation, and therefore are invalid.

The Department contends (1) Food and Agricultural Code section 12824 creates a two-tier data requirement system that distinguishes an original application for registration of a product containing an active ingredient from a subsequent application for registration of a product containing the same active ingredient, and does not require that the same data be submitted by the subsequent applicant; (2) the Department did not consider data submitted by Syngenta and Dow when it reviewed applications by Gustafson and others; (3) there was a rational basis to require more data to support the applications by Syngenta and Dow than to support the later applications by Gustafson and others, and there was no discriminatory intent, so there was no equal protection violation; (4) there was no taking because (i) the voluntary submission of data by Syngenta and Dow to the Department when the Department had no obligation to protect the confidentiality of the data extinguished their property rights in the data, (ii) the data did not suffer a diminution in value, and (iii) the Department neither improperly used or considered data submitted by Syngenta and Dow when it reviewed applications by Gustafson and others nor did so for a public purpose; (5) the data submitted by Syngenta and Dow are not trade secrets under the Uniform Trade Secrets Act because the data are disclosable under FIFRA; (6) the amendments to the regulations had no regulatory effect and therefore required no notice and hearing; (7) the Notice was not a regulation or policy and therefore was not subject to the rulemaking procedural requirements of the APA; and (8) former Food and Agricultural Code section 12811.5 prohibited only the actual consideration of certain data by the Department, and did not prohibit “passive” consideration or use of data that was neither submitted to the Department nor cited in connection with an application.

Gustafson contends (1) Syngenta failed to pursue administrative remedies available under Food and Agricultural Code sections 12825 and 12827 in the manner required by the APA and therefore failed to exhaust its administrative remedies; (2) the challenges to Gustafson’s prior registrations are moot because those registrations have expired; (3) the Department has broad discretion to develop and implement a program to evaluate pesticides and to determine what data are applicable to a particular application for registration, and Syngenta has not shown an abuse of discretion; (4) former Food and Agricultural Code section 12811.5 prohibited the Department from considering data previously submitted to the Department to support a later application by another applicant, without the prior applicant’s consent, but did not prohibit “passive” consideration of previously submitted data that was not actually considered in connection with a later application, so the declaratory judgment prohibiting the “passive” consideration of data was error; (5) the undisputed evidence shows that the Department did not consider data submitted by Syngenta in approving Gustafson’s applications, so Syngenta is entitled to neither an injunction nor a writ of mandate; (6) there was no taking because the Department did not consider or use data previously submitted by Syngenta when the Department approved Gustafson’s applications; and (7) there was a rational basis to require more data to support the applications by Syngenta and Dow than was required to support the later applications by Gustafson, and there was no discriminatory intent, so there was no equal protection violation.

The parties augmented their contentions in light of the 2005 amendment to Food and Agricultural Code section 12811.5. Syngenta and Dow contend (1) the amended statute governs only the Department’s prospective use of data and has no effect on their rights with respect to the Department’s past use of data; (2) in granting declaratory relief, the court correctly found that the Department unlawfully considered data previously submitted by Syngenta and Dow, without their written consent, in violation of former section 12811.5; and (3) they are entitled to a writ of mandate and a prohibitory injunction to prevent the Department from renewing registrations issued in violation of former section 12811.5, the takings clause, or the Uniform Trade Secrets Act and to compel the cancellation of registrations.

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The Department and Gustafson contend (1) the amended statute renders moot, the counts-for a peremptory writ of mandate and injunctive relief based on the former statute because those counts seek only prospective relief, the Department’s future conduct will be governed by the amended statute, and the amended statute allows the Department to rely on any evaluation of previously considered data; and (2) the court made no finding as to whether the Department considered data previously submitted by Syngenta and Dow without their written consent in violation of former Food and Agricultural Code section 12811.5. The Department also contends (3) the statutory amendment renders the other counts moot as well because the amended statute precludes any prospective relief based on alleged prior violations.

DISCUSSION

1. Standard of Review

A party is entitled to summary adjudication of a cause of action if there is no triable issue of material fact and the party is entitled to judgment as a matter of law. (Code Civ. Proc., § 437c, subds. (c) & (f)(1).) A plaintiff moving for summary adjudication of a cause of action must establish each element of the cause of action. (Id., subd. (p)(l).) A defendant moving for summary adjudication of a cause of action must show that one or more elements cannot be established or that there is a complete defense. (Id., subd. (p)(2).) A defendant can satisfy its burden by presenting evidence that negates an element of the cause of action or evidence showing that the plaintiff does not possess and cannot reasonably obtain needed evidence. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 853-854 [107 Cal.Rptr.2d 841, 24 P.3d 493].) If the moving party satisfies its initial burden, the burden shifts to the opposing party to set forth “specific facts” showing that a triable issue of material fact exists. (Code Civ. Proc., § 437c, subd. (p)(l), (2).) The court must view the evidence and reasonable inferences from the evidence in the light most favorable to the opposing party, as on a motion for summary judgment. (Aguilar, supra, at p. 843.)

The ruling on a motion for summary adjudication presents a question of law, so our review is de novo. (Certain Underwriters at Lloyd’s of London v. Superior Court (2001) 24 Cal.4th 945, 972 [103 Cal.Rptr.2d 672, 16 P.3d 94].) We ordinarily affirm the ruling if it is correct on any ground, regardless of the trial court’s stated reasons. (JEM Enterprises v. Washington Mutual Bank (2002) 99 Cal.App.4th 638, 644 [121 Cal.Rptr.2d 458].) Before we can affirm the ruling on a ground not relied on by the trial court, however, we must afford the parties an opportunity to brief the issue on appeal, and the parties may request an opportunity to present additional evidence or conduct discovery on the issue. (Code Civ. Proc., § 437c, subd. (m)(2).)

2. Statutory and Regulatory Framework

All pesticides sold in the United States must be registered with the U.S. EPA before they are sold. (7 U.S.C. § 136a(a).) All pesticides sold in California also must be registered with the Department. (Food & Agr. Code, §§ 12811, 12993.) Federal regulation of the sale of pesticides is governed by FIFRA, while regulation of the sale of pesticides in California is governed by division 7, chapter 2 of the Food and Agricultural Code (Food & Agr. Code, § 12751 et seq.). In determining whether to register a pesticide, the U.S. EPA and the Department consider, generally, the environmental impacts of a pesticide, impacts on public health, and the accuracy of product labeling. (7 U.S.C. § 136a(c)(5); Food & Agr. Code, §§ 12824, 12825; Cal. Code Regs., tit. 3, §§ 6158, 6238, 6300.) A pesticide registration in California expires at the end of the calendar year, unless the registrant timely applies for renewal. (Food & Agr. Code, § 12817.)

Food and Agricultural Code sections 12824 and 12825 establish the basic requirements for California registration:

“The director shall endeavor to eliminate from use in the state any pesticide that endangers the agricultural or nonagricultural environment, is not beneficial for the purposes for which it is sold, or is misrepresented. In carrying out this responsibility, the director shall develop an orderly program for the continuous evaluation of all pesticides actually registered.

“Before a substance is registered as a pesticide for the first time, there shall be a thorough and timely evaluation in accordance with this section. Appropriate restrictions may be placed upon its use including, but not limited to, limitations on quantity, area, and manner of application. All pesticides for which renewal of registration is sought also shall be evaluated in accordance with this section.

“The director may establish specific criteria to evaluate a pesticide with regard to the factors listed in Section 12825. The department may establish performance standards and tests that are to be conducted or financed, or both conducted and financed, by the registrants, applicants for registration, or parties interested in the registration of those pesticides.” (Food & Agr. Code, § 12824.)

“Pursuant to Section 12824, the director, after hearing, may cancel the registration of, or refuse to register, any pesticide:

“(a) That has demonstrated serious uncontrollable adverse effects either within or outside the agricultural environment.

“(b) The use of which is of less public value or greater detriment to the environment than the benefit received by its use.

“(c) For which there is a reasonable, effective, and practicable alternate material or procedure that is demonstrably less destructive to the environment.

“(d) That, when properly used, is detrimental to vegetation, except weeds, to domestic animals, or to the public health and safety.

“(e) That is of little or no value for the purpose for which it is intended.

“(f) Concerning which any false or misleading statement is made or implied by the registrant or his or her agent, either verbally or in writing, or in the form of any advertising literature.

“(g) For which the director determines the registrant has failed to report an adverse effect or risk as required by Section 12825.5.

“(h) If the director determines that the registrant has failed to comply with the requirements of a reevaluation or to submit the data required as part of the reevaluation of the registrant’s product.

“(i) That is required to be registered pursuant to the federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. Sec. 136 et seq.) and that is not so registered.

“In making a determination pursuant to this section, the director may require those practical demonstrations that are necessary to determine the facts.” (Food & Agr. Code, § 12825.)

The Department’s regulations require an applicant for registration to submit certain data in support of the application, including data on general toxicity, toxicity with respect to particular uses, efficacy of the product, and other data that the Department may require. (Cal. Code Regs., tit. 3, §§ 6170, 6172-6193.5; see Food & Agr. Code, § 12824.) The regulations state that the data submitted in support of federal pesticide registration under FIFRA substantially satisfy the data requirements for California registration, except as provided by regulation. (Cal. Code Regs., tit. 3, § 6159.) The regulations state that in lieu of submitting data, an applicant may reference data previously submitted by the applicant or data previously submitted by another person, if the data owner consents in writing. (Cal. Code Regs., tit. 3, § 6170, subd. (c).) The Department’s pesticide registration program is a certified regulatory program under CEQA. (Pub. Resources Code, § 21080.5; Cal. Code Regs., tit. 14, § 15251, subd. (i).)

Former Food and Agricultural Code section 12811.5, enacted in 1996 (Stats. 1996, ch. 435, § 7, p. 2740), stated, “Except as provided in Section 13128, data, other than public literature, previously submitted to the director or the Administrator of the United States Environmental Protection Agency to support an application for the original registration of a pesticide, or to support an application for an amendment adding any new use to that registration and that pertains solely to that new use, shall not, without the written permission of the original data submitter, or its assigns or successors in interest, be considered by the director to support an application by another person.” The parties dispute the scope of this statutory prohibition on the consideration of data submitted by another applicant, particularly the meaning of “considered.” Before addressing that question, we address the contentions by the Department and Gustafson that the 2005 amendment to section 12811.5 renders moot all or part of this proceeding and Gustafson’s contention that Syngenta and Dow were required to exhaust administrative remedies but failed to do so.

3. The Statutory Amendment Does Not Render This Proceeding Moot

a. Counts Based on Former Food and Agricultural Code Section 12811.5

Syngenta and Dow seek only prospective relief for the Department’s alleged violations of former Food and Agricultural Code section 12811.5 rather than damages for past violations. They originally sought a writ of mandate directing the Department to deny Gustafson’s pending applications and set aside a completed registration, an injunction prohibiting the Department from considering previously submitted data without their consent, and a declaration as to the parties’ rights and obligations under former section 12811.5. After the 2005 statutory amendment, Syngenta and Dow contend they are entitled to (i) a writ of mandate or an injunction directing the Department not to renew registrations issued in violation of former section 12811.5 and to cancel any improper registrations, and (ii) a declaration as to the parties’ rights and obligations under former section 12811.5.

Because an injunction operates prospectively, an appellate court reviewing the ruling on an injunction ordinarily must apply the law currently in effect. (White v. Davis (1975) 13 Cal.3d 757, 773, fn. 8 [120 Cal.Rptr. 94, 533 P.2d 222].) The question now presented with respect to an injunction, however, is not whether the Department’s alleged practice of considering previously submitted data without the data owner’s consent violates current Food and Agricultural Code section 12811.5, but whether the current statute precludes the requested injunctive relief for violation of the former statute. The amendment became effective on January 1, 2006, and presumably operates prospectively only. (Gov. Code, § 9600, subd. (a); Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1208 [246 Cal.Rptr. 629, 753 P.2d 585].) The Department and Gustafson have not shown otherwise and have identified no language in the amended statute suggesting that any prior violations of former section 12811.5 by the Department are excused or that an applicant is entitled to maintain or renew a registration issued in violation of section 12811.5. We therefore conclude the counts based on former section 12811.5 are not moot.

b. Counts Based on Other Laws

The Department offers no persuasive argument why the amendment of Food and Agricultural Code section 12811.5 would render moot the counts based on laws other than former section 12811.5 and has identified no language in the amended statute suggesting that it was intended to immunize prior violations of other laws. We therefore conclude the counts based on other laws are not moot.

4. Rules of Statutory Construction

Statutory construction is a question of law that we review de novo. (Barner v. Leeds (2000) 24 Cal.4th 676, 683 [102 Cal.Rptr.2d 97, 13 P.3d 704].) Our task in construing a statute is to ascertain and effectuate the legislative intent. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 715 [3 Cal.Rptr.3d 623, 74 P.3d 726].) The statutory language ordinarily is the most reliable indicator of legislative intent. (Ibid.) We give the words of the statute their ordinary and usual meaning and construe them in the context of the statute as a whole. (Ibid.) If the plain language of the statute is unambiguous and does not involve an absurdity, the plain meaning governs. (People v. Garcia (2002) 28 Cal.4th 1166, 1172 [124 Cal.Rptr.2d 464, 52 P.3d 648]; People v. Ledesma (1997) 16 Cal.4th 90, 95 [65 Cal.Rptr.2d 610, 939 P.2d 1310].) If the statute is ambiguous, we may consider a variety of extrinsic aids, including the apparent purpose of the statute. (Hughes v. Board of Architectural Examiners (1998) 17 Cal.4th 763, 776 [72 Cal.Rptr.2d 624, 952 P.2d 641].)

5. Syngenta and Dow Were Not Required to Exhaust Administrative Remedies

A party ordinarily must exhaust the administrative remedies available before seeking judicial relief. (Campbell v. Regents of University of California (2005) 35 Cal.4th 311, 321 [25 Cal.Rptr.3d 320, 106 P.3d 976].) The exhaustion of administrative remedies requires a party to pursue and obtain a decision from the final administrative decision maker before suing in court. (Tahoe Vista Concerned Citizens v. County of Placer (2000) 81 Cal.App.4th 577, 594 [96 Cal.Rptr.2d 880].) The exhaustion requirement affords the administrative agency an opportunity to correct any deficiency and avoid costly litigation or reduce the scope of litigation. (Sierra Club v. San Joaquin Local Agency Formation Com. (1999) 21 Cal.4th 489, 501 [87 Cal.Rptr.2d 702, 981 P.2d 543]; Westlake Community Hosp. v Superior Court (1976) 17 Cal.3d 465, 476 [131 Cal.Rptr. 90, 551 P.2d 410].) The exhaustion requirement also facilitates the development of a complete factual record and allows the agency to apply its expertise, both of which can assist later judicial review, if necessary. (Campbell, supra, at p. 322; Sierra Club, supra, at p. 501.) The exhaustion requirement does not apply, however, if the Legislature indicates its intent to allow judicial relief notwithstanding the failure to exhaust administrative remedies by providing for a judicial proceeding as an alternative to the administrative remedy. (City of Susanville v. Lee C. Hess Co. (1955) 45 Cal.2d 684, 689 [290 P.2d 520].)

Food and Agricultural Code section 12825 states that the director of the Department, “after hearing,” may cancel a registration or refuse to register a pesticide in certain circumstances, including if “the registrant has failed to comply with the requirements of a reevaluation or to submit the data required as part of the reevaluation of the registrant’s product.” (Id., subd. (h).) Food and Agricultural Code section 12827 states that the director may cancel a registration or refuse to register a pesticide if the manufacturer “repeatedly violates any of the provisions of this chapter or the regulations of the director.” Section 12827 also states that the proceedings must be conducted in accordance with the administrative adjudication provisions of the APA (Gov. Code, § 11400 et seq.). Thus, Food and Agricultural Code sections 12825 and 12827 provide for a hearing and a decision by the director that a pesticide should not be registered or that a registration should be canceled, based on specified grounds. Government Code section 11503 states that a hearing to determine whether a license should be revoked should be initiated by filing an accusation, and Government Code section 11504 states that a hearing to determine whether a license should be issued or renewed should be initiated by filing a statement of issues.

Food and Agricultural Code section 12828 states, “Action by the director pursuant to Sections 12824, 12825, 12826, or 12827 is not a condition precedent to the institution of any action to prosecute a violation of the chapter.” In our view, the term “prosecute” in this context is not limited to criminal prosecution, but also encompasses a civil action. (See Webster’s 3d New Intemat. Diet. (2002) p. 1820 [defining “prosecute” as, inter alia, “to institute legal proceedings with reference to”]; Black’s Law Diet. (8th ed. 2004) p. 1258 [defining “prosecute” as, inter alia, “[t]o commence and carry out a legal action”].) We construe the plain language of section 12828 to mean that a decision by the director under Food and Agricultural Code section 12825 or 12827 to cancel a registration or refuse to register a pesticide is not a condition precedent to a judicial proceeding based on a violation of the applicable Food and Agricultural Code provisions. Because the exhaustion of administrative remedies under sections 12825 and 12827 would require obtaining a decision by the director, by relieving a plaintiff of the requirement to obtain a decision by the director, the Legislature effectively relieved a plaintiff of the requirement of exhaustion of administrative remedies. We therefore conclude that Syngenta and Dow are entitled to a judicial resolution of this matter notwithstanding their failure to pursue administrative remedies.

6. Former Food and Agricultural Code Section 12811.5 Prohibited “Consideration” of Data in the Manner at Issue Here

Food and Agricultural Code section 12824 states that the Department “shall endeavor to eliminate from use in the state any pesticide that endangers the agricultural or nonagricultural environment, is not beneficial for the purposes for which it is sold, or is misrepresented,” and states that the Department “shall develop an orderly program for the continuous evaluation of all pesticides actually registered.” Section 12824 requires the Department to conduct “a thorough and timely evaluation” of a pesticide “[b]efore a substance is registered as a pesticide for the first time,” and states that a pesticide also should be evaluated in accordance with the statute for purposes of a registration renewal. Section 12824 states that the Department “may establish specific criteria to evaluate a pesticide with regard to the factors listed in Section 12825,” and that it “may establish performance standards and tests that are to be conducted or financed ... by the registrants . . . .”

California Code of Regulations, title 3, section 6170 and other regulations describe the data that an applicant is required to submit in support of an application for registration, pursuant to Food and Agricultural Code section 12824. Food and Agricultural Code section 12825 lists several factors for the Department to consider in the evaluation of a pesticide and states that the Department may cancel the registration of or refuse to register a pesticide if any of the circumstances listed in the statute is present. Although sections 12824 and 12825 do not prominently use the word “data,” it is apparent that the evaluation of a pesticide pursuant to the two statutes involves, among other things, the evaluation of data pertinent to the factors listed in section 12825.

Later-enacted statutes also require the submission of data to the Department. Food and Agricultural Code section 13127, part of the Birth Defect Prevention Act of 1984 (Food & Agr. Code, § 13121 et seq.), states that by December 31, 1985, the Department must identify 200 potentially hazardous pesticide active ingredients for which “the most significant data gaps” exist and must require registrants to submit data to fill the gaps. (Id., § 13127, subd. (a).) Section 13127, subdivision (b), states that by the same date, the Department must establish a timetable to require registrants to fill all data gaps on all other pesticide active ingredients currently registered in California. Food and Agricultural Code section 13128 states, “No applicant for registration or current registrant of a pesticide who proposes to purchase or purchases a registered pesticide from another producer in order to formulate the purchased pesticide into an end use product shall be required pursuant to Section 13127 to submit or cite mandatory health effect data pertaining to the safety of the purchased product or to offer to pay reasonable compensation for the use of any such data if the producer is engaged in fulfilling the requirements of Section 13127.”

Food and Agricultural Code section 13143, part of the Pesticide Contamination Prevention Act of 1985 (Food & Agr. Code, § 13141 et seq.), states that by December 1, 1986, registrants must submit to the Department certain information pertaining to each active ingredient in registered pesticides, and that after that date, each applicant for registration of a new pesticide must submit the information required by the Department pursuant to the act. (Id., § 13143, subds. (a) & (e).) The Birth Defect Prevention Act and the Pesticide Contamination Prevention Act both incorporate a provision of FIFRA that provides for compulsory data sharing and compensation (7 U.S.C. § 136a(c)(2)(B)(iii)), for purposes of certain data required under the California acts. (Food & Agr. Code, §§ 13127, subd. (c)(1), 13146, subd. (c).)

Former Food and Agricultural Code section 12811.5 referred to the Department’s consideration of data previously submitted by another applicant. In the context of a statutory and regulatory regime requiring applicants to submit data to the Department or cite data previously submitted and requiring the Department to thoroughly evaluate pesticides before they are registered, the reference in former section 12811.5 to data “considered” by the Department is reasonably susceptible of more than one construction. A narrow construction of “consider” the data is to review and think about the data in connection with the evaluation of an application. Syngenta and Dow construe the term “consider” more broadly. They argue that even if the Department did not actually review data that they previously submitted when it evaluated a pesticide manufactured by another applicant containing the same active ingredient, the Department took that data into account because it did not require the later applicant to submit comparable data, and therefore “considered” the data.

The legislative history of former Food and Agricultural Code section 12811.5 suggests that the bill was intended to prevent applicants from lawfully obtaining copies of data submitted by other applicants and submitting the data to the Department without the prior applicants’ consent, and more generally to protect the original applicants’ proprietary interests in the data submitted. An analysis by the Senate Rules Committee stated that the arguments in support of the bill were that it would “prevent the pirating of proprietary data using the federal Freedom of Information Act” and “provid[e] fairness to data generators.” (Sen. Rules Com., Off. of Sen. Floor Analyses, Analysis of Sen. Bill No. 802 (1995-1996 Reg. Sess.) as amended June 11, 1996, p. 3.) Apart from stating those general purposes, however, the legislative history is no more specific as to the meaning of “considered.”

Other language in former Food and Agricultural Code section 12811.5 supports the construction advocated by Syngenta and Dow. Former section 12811.5 stated, “Except as provided in Section 13128, data, other than public literature, previously submitted to the director or the Administrator of the United States Environmental Protection Agency to support an application for the original registration of a pesticide, or to support an application for an amendment adding any new use to that registration and that pertains solely to that new use, shall not, without the written permission of the original data submitter, or its assigns or successors in interest, be considered by the director to support an application by another person.” (Italics added.) Food and Agricultural Code section 13128, quoted ante, contains no express exception to the prohibition stated in former section 12811.5. That is, section 13128 does not expressly provide that the Department may consider certain data previously submitted by another applicant without that applicant’s written consent. Rather, section 13128 states that the Department cannot require an applicant or current registrant, pursuant to Food and Agricultural Code section 13127, to submit or cite certain data pertaining to a pesticide purchased from another producer or to offer to pay for use of the data, if the other producer is providing the data required under section 13127.

The express exception stated in former Food and Agricultural Code section 12811.5 suggests that absent that exception the statute would prohibit the conduct described in Food and Agricultural Code section 13128. (See 2A Singer, Statutes and Statutory Construction (6th ed. 2000) § 47:11, p. 252 [“true statutory exceptions exist only to exempt something which would otherwise be covered”].) This suggests that the conduct described in section 13128 involves the Department’s consideration of data submitted by another applicant without that applicant’s written consent. Specifically, this suggests that when the Department, pursuant to section 13128, does not require an applicant or current registrant to submit or cite mandatory health effect data pertaining to the safety of a purchased product because the producer of the purchased product is submitting the data required under Food and Agricultural Code section 13127, the Department “considers” the data submitted by the producer within the meaning of former section 12811.5. We therefore conclude that the Legislature intended “considered” in former section 12811.5 to encompass the Department’s reliance on data submitted by another applicant even if the later applicant did not submit or cite the data and the Department did not actually review the data in connection with the later application. The Department “considered” data submitted by another applicant by taking into account the fact that the other applicant submitted the data and by not requiring the later applicant to submit the same type of data.

Our conclusion is consistent with the declaratory judgment construing former Food and Agricultural Code section 12811.5 to mean that the Department “may not, actively or passively, use or consider an original registrant’s data in support of a subsequent application for registration of a pesticide product without the data owner’s consent,” although we intend our opinion to be more explanatory than the declaratory judgment, particularly its use of the word “passive.” Moreover, the amendment of section 12811.5 makes it necessary to modify the declaratory judgment to state that the Department “could not,” rather than “may not,” consider, in the manner we have discussed, data previously submitted to the Department or the U.S. EPA by another applicant to support an application described in former section 12811.5 without the written consent of the data owner or its successor in interest. We affirm the summary adjudication in favor of Syngenta and Dow on the count for declaratory relief based on former section 12811.5 as so modified with the understanding that this opinion constitutes a declaration of the parties’ rights and duties with respect to the statute. (Bach v. McNelis (1989) 207 Cal.App.3d 852, 872-873 [255 Cal.Rptr. 232]; see 5 Witkin, Cal. Procedure (4th ed. 1997) Pleading, § 832, pp. 291-292.)

7. Whether the Department Violated Former Food and Agricultural Code Section 12811.5 Depends on Triable Factual Issues

Former Food and Agricultural Code section 12811.5 prohibited the Department from considering without written consent only data previously submitted “to support an application for the original registration of a pesticide, or to support an application for an amendment adding any new use to that registration and that pertains solely to that new use.” (Ibid.) Contrary to the argument by Syngenta and Dow on appeal, the court in granting declaratory relief made no finding as to whether the Department considered data previously submitted by Syngenta and Dow without their written consent in violation of former section 12811.5.

Syngenta and Dow argued in their motion for summary judgment or summary adjudication that the Department considered data that they previously submitted to support later applications for registration by Gustafson and Nations Ag. Syngenta and Dow filed declarations with tables listing studies that they submitted to the Department to “support and maintain” registrations for pesticide products containing metalaxyl and oryzalin. They grouped the studies according to the registration criteria that the studies addressed. They also listed studies submitted by Gustafson and Nations Ag grouped by registration criteria. Syngenta and Dow argued that when Gustafson and Nations Ag failed to submit a study addressing a particular criterion, the Department considered studies previously submitted by Syngenta and Dow to fill the gap. Syngenta and Dow listed those previously submitted studies purportedly considered by the Department without their consent in appendices to their motion.

Syngenta and Dow presented no evidence, however, as to which of those studies they submitted “to support an application for the original registration of a pesticide, or to support an application for an amendment adding any new use to that registration and that pertains solely to that new use” (Food & Agr. Code, former § 12811.5). That is, Syngenta and Dow did not distinguish studies they submitted to support an original registration or an amendment adding a new use from studies they submitted for another purpose, such as certain data required under the Birth Defect Prevention Act or Pesticide Contamination Prevention Act. We cannot determine on this record whether the Department improperly considered studies submitted by Syngenta and Dow that were protected by former Food and Agricultural Code section 12811.5 or, if so, which studies the Department improperly considered. We therefore conclude that Syngenta and Dow are not entitled to summary adjudication of the count alleging violation of former section 12811.5.

The Department and Gustafson moved for summary adjudication on the count alleging violation of former Food and Agricultural Code section 12811.5 arguing that the Department did not improperly “consider” data previously submitted by Syngenta and Dow because it did not actually review the data in connection with applications by other applicants. The Department also argued that it was entitled to summary adjudication because Syngenta and Dow failed to specify in response to written interrogatories the data they submitted that purportedly was protected by former section 12811.5. The Department and Gustafson presented no evidence to show that the Department did not consider studies previously submitted by Syngenta and Dow that were protected by former section 12811.5, as we construe the former statute, and therefore are not entitled to summary adjudication on that basis. Moreover, we conclude that the interrogatory responses alone, in which Syngenta and Dow objected that the Department had failed to produce documents maintained by the Department containing the information requested, absent some further effort to enforce the discovery, do not show that Syngenta and Dow do not possess and cannot reasonably obtain needed evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891-892 [134 Cal.Rptr.2d 313].)

Although the court awarded Syngenta and Dow declaratory relief based on former Food and Agricultural Code section 12811.5, it denied a prohibitory injunction based on the statute and granted summary adjudication in favor of the Department and Gustafson on the count alleging violation of the statute. The order stated, “As declaratory relief is dispositive of the lawsuit, a ruling upon the remaining causes of action is somewhat academic. Nevertheless, the Director has requested a ruling as [to] the remaining causes of action. The court therefore grants the Defendant’s and Real Party’s cross-motions for summary adjudication as to all remaining causes of action for reasons stated in the official notes of the court reporter. These may be briefly summarized as follows: [][] The second cause of action for injunctive relief is not sustained by the evidence, namely, there has been no showing of imminent danger of irreparable harm, or that the Director will, or threatens to, ignore the court’s declaration in the absence of appellate relief.”

“A permanent injunction is an equitable remedy for certain torts or wrongful acts of a defendant where a damage remedy is inadequate. A permanent injunction is a determination on the merits that a plaintiff has prevailed on a cause of action for tort or other wrongful act against a defendant and that equitable relief is appropriate.” (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 646 [4 Cal.Rptr.2d 689].)

Civil Code section 3422 states that a court may grant a permanent injunction “to prevent the breach of an obligation existing in favor of the applicant: [