Judge: Alison Mackenzie, Case: 23STCV11036, Date: 2024-11-18 Tentative Ruling
Case Number: 23STCV11036 Hearing Date: November 18, 2024 Dept: 55
NATURE OF PROCEEDINGS: Hearing on Plaintiff’s Motion
for Stipulated Judgment
Plaintiff’s Motion
for Stipulated Judgment is granted.
BACKGROUND
Plaintiff Berj Parseghian
filed this action against D’vash Organics, LLC
(D’Vash) and Wholefoods Market
California, Inc. (“Defendants”) alleging
that D’Vash’s Superfood Bites contain levels of lead, a known carcinogenic and
reproductive toxicant, in excess the maximum allowable dosage level established
by the California Office of Environmental Health Hazard Assessment.
The sole cause of action was for injunctive relief and civil
penalties under Proposition 65, Health and Safety Code § 25249.5, et seq.
The motion now before the Court is Plaintiff’s unopposed Motion for
Stipulated Judgment.
LEGAL STANDARD
Proposition 65 prohibits “knowingly and intentionally
expos[ing] any individual to a chemical known to the state to cause cancer”
without “first giving clear and reasonable warning” to that individual. Consumer
Def. Grp. v. Rental Hous. Indus. Members (2006) 137 Cal.App.4th 1185, 1213.
Proposition 65 authorizes litigants to bring private
enforcement actions if they provide the required notice to the Attorney General
and the district attorney, city attorney, or prosecutor in whose jurisdiction
the violation is alleged to have occurred; provide notice to the alleged
violator; and if neither the Attorney General nor the appropriate prosecutor
commences an action against the violation. Health & Saf. Code, § 25249.7,
subd. (d). If a private enforcement action settles, the plaintiff must submit
the settlement to the court for approval upon noticed motion. Health & Saf.
Code, § 25249.7, subd. (f)(4). The court may approve the settlement only if it
makes the following findings: (i) the warning that is required by the
settlement complies with the Act; (ii) the award of attorney fees is reasonable
under California law; and (iii) the penalty amount is reasonable based on the
criteria set forth in subdivision (b)(2) of this section. Health & Saf.
Code, § 25249.7, subd. (f)(4)(A)-(C).
To determine whether the penalty is reasonable, courts
consider the following factors: (1) the nature and extent of the violation; (2)
the number and severity of the violations; (3) the economic effect of the penalty
on the violator; (4) whether the violator took good faith measures to comply
with the Act and the time these measures were taken; (5) the willfulness of the
violator’s misconduct; (6) the deterrent effect that the imposition of the
penalty would have on both the violator and the regulated community as a whole;
and (7) any other factor that justice may require. Health & Saf. Code, §
25249.7, subd. (b)(2)(A)-(G).
ANALYSIS
I. Warning Labels
Defendant has agreed to either reformulate the Product or to
provide the following warning statement: “WARNING: Consuming this product can
expose you to chemicals including lead, which is known to the State of
California to cause [cancer and], birth defects or other reproductive harm. For
more information go to www.P65Warnings.ca.gov/food” OR “WARNING: [Cancer and]
Reproductive Harm - http://www.p65warnings.ca.gov/food.” Consent J. at p. 5. The
phrase “cancer and” will appear in the warning if Defendant has reason to
believe that the “Daily Lead Exposure Level” is greater than 15 micrograms of
lead. Ibid. The warning shall be securely affixed to or printed upon the
label of each covered product, and it must be set off from other surrounding
information. Ibid. For any covered product sold over the internet, the
warning shall appear in the checkout page in full text or through a clearly marked
hyperlink using the word “WARNING” in all capital and bold letters when
a California delivery address is indicated. Ibid. “For the Option 2
Warning, a symbol consisting of a black exclamation point in a yellow
equilateral triangle with a bold black outline shall be placed to the left of
the text of the Warning, in a size no smaller than the height of the word “WARNING.”
Ibid.
This warning complies with the format for warnings allowed
under California Code of Regulations, title 27, section 25603. See 27
Cal. Code Regs., § 25603, subd. (a)(2)(C). The proposed consent judgment meets
the requirements of Health and Safety Code, section 25249.7, subdivision
(f)(4)(A).
II. Reasonable Civil Penalty
Health & Safety Code section 25249.7, subdivision (b)(1)
states, in relevant part: “A person who has violated Section 25249.5 or 25249.6
is liable for a civil penalty not to exceed two thousand five hundred dollars
($2,500) per day for each violation in addition to any other penalty
established by law.” “In assessing the amount of a civil penalty for a
violation of this chapter, the court shall consider all of the following: (A)
The nature and extent of the violation. (B) The number of, and severity of, the
violations. (C) The economic effect of the penalty on the violator. (D) Whether
the violator took good faith measures to comply with this chapter and the time
these measures were taken. (E) The willfulness of the violator’s misconduct.
(F) The deterrent effect that the imposition of the penalty would have on both
the violator and the regulated community as a whole. (G) Any other factor that
justice may require.” Health & Safety Code, § 25249.7(b)(2).
The consent judgment provides for a civil penalty of $5,000,
75% of which is to be remitted to the Office of Environmental Health and Hazard
Assessment with the remaining 25% remitted to Plaintiff. See Health
& Saf. Code, § 25249.12, subd. (c).) According to Plaintiff’s counsel, the
penalty amounts are based on the facts and circumstances of this case. Krikorian
Decl. ¶ 13.
Plaintiff’s counsel attests that this civil penalty was
determined based on the “relatively low” levels of lead and Defendant’s
willingness to agree to maintain appropriate warnings for consumers on labels
of packaging or containers. Ibid. Plaintiff also provides further facts
regarding the economic effect of the penalty on the violator, Defendant’s good
faith measures, and the deterrent effect of the penalty pursuant to Health
& Safety Code § 25249.7(b)(2). Motion, pp. 7-8.
Considering the parties’ agreement and based on the
submitted evidence, the Court finds that the proposed $5,000 civil penalty is
reasonable. See Health & Saf. Code, § 25249.7, subd. (b)(2).
III. Reasonableness of Attorney’s Fees
The proposed consent judgment provides for a total penalty
of $35,000 to be paid as reimbursement of Plaintiff’s attorney fees and costs.
Plaintiff submits a copy of its counsel’s declaration in support.
The court must review the amount of attorney fees sought and
make a finding on the reasonableness of such fees. “The primary method for
establishing the amount of ‘reasonable’ attorney fees is the lodestar method,”
which is produced by multiplying the number of hours reasonably expended by
counsel by a reasonable hourly rate. In re Consumer Privacy Cases (2009)
175 Cal.App.4th 545, 556.
Plaintiff’s counsel, Tro Krikorian, attests that he has
expended 64 hours on this matter at a rate of $450 per hour, and managing
partners Vache Thomassian and Caspar Jivalagian expended 21 and 8 hours,
respectively, on this matter at a rate of $550 per hour. Krikorian Decl. ¶ 4-5.
Krikorian attests that he has been an active attorney in California since 2017,
Thomassian has been an active attorney in California since 2013, and Jivalagian
has been an active California attorney since 2012. Ibid. According to
Krikorian, Thomassian is a graduate of Loyola Law School and has spent a
substantial portion of his career litigating personal injury and employment
wage and hour cases on behalf of plaintiffs. Ibid. Krikorian attests Jivalagian
received his law degree from Southwestern Law School and has spent a
substantial portion of his career litigating personal injury and worker’s
compensation cases on behalf of plaintiffs. Ibid. Krikorian further
attests that he graduated from the University of West Los Angeles Law School
and has experience litigating state and federal matters. Krikorian Decl. ¶ 1,
Ex. D. Plaintiff further provides a timesheet detailing the 93 hours spent on
this matter. Krikorian Decl. p. 6.
Plaintiff’s counsel provides the hours spent per stage of
litigation as follows: (1) 13 hours for “Pre-litigation investigation,” (2) 5.5
hours to exchange and review information, (3) 6.5 hours to prepare, review, and
file the complaint, (4) 5 hours litigation strategy (6) 23 hours on formal
discover including preparation of written discovery requests, review of
discovery responses, preparation and service of deposition notices, and meeting
and conferring, (7) 7.5 hours drafting reviewing and amending terms of the
consent judgment, (8) 8 hours preparing reviewing and filing of motion packet, (9)
10.5 hours on communicating with opposing counsel throughout, (10) 9 hours
communicating with client throughout,
(11) 5 hours communicating with experts throughout and (12) an
additional 3 to 4 hours preparing for and attending the hearing. Ibid. Krikorian
further attests that his firm advanced approximately $4,500.00 in unreimbursed
litigation expenses. Ibid.
Based on counsels’ experience and the prevailing rate for
comparable work in Los Angeles County, the Court finds the hourly rates and the
amount of attorney's fees reasonable under the circumstances here.
IV. Public Benefit
The Court notes that “a settlement that provides for the
giving of a clear and reasonable warning, where there had been no warning
provided prior to the sixty-day notice, for an exposure that appears to require
a warning, is presumed to confer a significant benefit on the public.” 11 Cal.
Code Regs., § 3201(b)(1).
Here, the proposed consent judgment requires Defendant to
give a clear and reasonable warning on the covered product that was not
previously provided. As such, the Court finds that the proposed consent
judgment properly serves the public interest and complies with the applicable
regulations.
CONCLUSION
Plaintiff’s Motion for Stipulated Judgment is granted.