Thursday, November 29, 2007
Earthbound Farm knows a thing or two about damage control. If the Carmel Valley organic giant never hears or sees the term “E. coli” and its name mentioned in the same sentence again, it will be too soon. But this season’s round of damage control will likely have nothing to do with spinach. This time around, it’ll be the result of a few bad apples.
Make no mistake: There’s nothing wrong with Earthbound’s pink-fleshed heirloom apples. In fact, they’re so good, Marinus and Sierra Mar restaurants each debuted the beauties in their own recipes a year ago. And the trees without a name are so rare that, outside of Carmel Valley, not another has been positively identified to exist. Anywhere.
Still, on Friday Nov. 30, Monterey County Superior Court Judge Robert O’Farrell will decide whether or not to stop Earthbound from selling even a slice of those apples.
The whole sordid tale began in the pages of the Weekly last year when Mark Marino, Earthbound’s director of research and development, told the Weekly how he’d come across the original tree he’d learned about from ubiquitous author and physician Andrew Weil. “[Weil] lived in Carmel Valley in the ‘60s and ‘70s,” Marino said. “So he’s the one who told me about this tree with these pink apples. It took me a while to sleuth it out, but I found it.”
Marino didn’t just find the gem-bearing apple tree in 2001: He trimmed it, took the clippings back to the office, did horticulturist things to them, and turned them into the orchard that sits at Earthbound’s Carmel Valley ranch.
The problem, however, is that in order to get to the rare tree, Marino went onto someone else’s property without permission, and helped himself to those clippings. That property belonged to Priscilla Higuera.
“After she read [the Weekly’s] story, she put two and two together and figured out why she came home one day and found her tree stripped,” says Higuera’s lawyer, Gerald Barron.
According to court documents, Higuera called the police immediately after finding the tree stripped in 2001. With no leads, the case stagnated.
After the Weekly article, Higuera called the sheriff’s department again. In an Oct. 26, 2006 report, Deputy Sheriff Rick Matthews wrote he had spoken to Marino about whether or not he’d taken the clippings from Higuera’s tree. According to the officer, Marino said that he had no recollection of where he got them.
Within weeks of the Weekly article, Higuera filed a lawsuit against Marino and Earthbound. An Earthbound spokesperson says the company won’t comment on pending litigation.
On March 13, 2007, five months after Marino told Deputy Matthews that he couldn’t remember where he got the clippings, Marino gave a sworn deposition and admitted that he took clippings from Higuera’s tree without permission from the property owners, “to plant new apple trees.”
Marino says that he had been out to the property many times, in an attempt to locate a property owner, and left his business card each time. Marino says each time he returned, his business card was gone. He says he didn’t go to neighboring properties for help because he was afraid: “A lot of people up there are like meth lab people, and I didn’t know if I would want to talk to them or not.” Marino says he finally concluded that the manicured, gated and fenced property and rare apple tree had been abandoned.
“It’s ridiculous,” Barron says. “You can’t go to someone else’s property, find a chair you like, not reach the owner, and then decide to take the chair. It’s the same thing. The property and everything on it belongs to the owner.”
Court documents say the unnamed rare pink-fleshed apples were first sold commercially by Earthbound in 2005. They sold for $2.59 a pound.
In her lawsuit, Higuera asserts that Earthbound never had a right to the tree or the fruit it bore; therefore, any money Earthbound made off of those apples is hers.
In an answer to Higuera’s complaint, Earthbound Farm says it’s too late for Higuera to make a claim because the three-year statute of limitations has run out.
“Basically, they’re saying that they hid their crime long enough, so we’re out of luck,” Barron says.
It may be a technicality, but it’s still the law. Barron’s answering back with his own technicality. “The exception to the statute of limitations is fraudulent concealment, or hiding your wrongdoing.” Barron says that’s what Marino did when he told the officer he had no recollection of where he had gotten them, but then, in his deposition, says he told people the apples were from Cachagua, Big Sur and Tassajara.
In March of next year, a jury will decide which technicality will prevail. On Nov. 30, Judge O’Farrell will decide whether or not to order a temporary halt to any action surrounding the trees, including the sale of its fruit.