Sohner v. Mason

PEEK, J.

This is an appeal from a judgment of dismissal entered pursuant to the court’s order sustaining defendants’ demurrers to plaintiff’s second amended complaint without leave to amend.

Initially plaintiff sought, by injunction, to restrain the Director of the Department of Agriculture from requiring him to license his business under the provisions of chapter 1A, division 2, of the Agricultural Code; or in the alternative to restrain the Director of the Department of Motor Vehicles from enforcing the vehicle registration provisions of the Vehicle Code and the Revenue and Taxation Code as to vehicles used by him in his business of agricultural pest control. Separate demurrers by the defendants were sustained with leave to amend. Thereupon plaintiff filed his first amended complaint by which he sought declaratory relief. In said complaint, which embodied much of that contained in his original complaint, it was alleged that the vehicle spray units were designed and used by plaintiff “solely and exclusively for the purpose of spraying weeds and noxious growth, for the purpose of eradication and destruction of said weeds and noxious growth”; that he has “no other operation in which he is engaged which might be termed an agricultural operation,” and that he conducted his operations by going upon properties “used both for agricultural and commercial purposes.” Defendants’ demurrers were again sustained.

Thereafter a second amended complaint was filed. It was identical with the first amended complaint with the exception that the words “and which said properties are used both for agricultural and commercial purposes” were deleted. Again defendants demurred and this time the court sustained the same without leave to amend.

Section 160.2 of the Agricultural Code provides in part that: “It is unlawful for any person to engage for hire in the business of pest control without first procuring from the director a license for each calendar year or portion thereof.”

[451]

Since plaintiff admittedly is engaged in the business of pest control, he is therefore compelled by legislative mandate to secure a license from the Director of Agriculture to so operate his business. Under such circumstances he could not, nor has he alleged facts showing a present legal controversy existing with the said director. A cause for declaratory relief is not established by the mere allegation that a controversy exists when reference to the allegations of fact discloses that there is no present valid controversy between the parties.