Judge Alison Mackenzie, Case Number: 23STCV30991, Date: 2024-06-05 Tentative Ruling

Judge: Alison Mackenzie, Case: 23STCV30991, Date: 2024-06-05 Tentative Ruling

Case Number: 23STCV30991 Hearing Date: June 5, 2024 Dept: 55

NATURE OF PROCEEDINGS: Motion of Plaintiff for Entry of Stipulated Consent Judgment.

BACKGROUND

This is a Proposition 65 case filed by TAMAR KALOUSTIAN (“Plaintiff”) against ANCIENT BRANDS, LLC (“Defendant”), alleging that Defendant sold and distributed Organic Super Greens, which allegedly contains excess levels of lead, without adequately warning consumers.

Plaintiff’s motion requests approval of a stipulated Consent Judgment.

LEGAL STANDARD

In deciding whether to approve a consent judgment under Proposition 65, judges must consider whether (1) the judgment serves the public interest including the specific benefit the public would reap, (2) there is justiciability based on an actual or threatened violation beyond mere speculative chance, (3) there was notice given to the Attorney General 60 days before commencing litigation that was specific enough as to the location and source of exposure to enable a meaningful review by the Attorney General, and (4) there is compliance with statutory requirements of (a) clear and reasonable warnings reasonably calculated considering the alternative methods available in the circumstances to make the warning message available to the individual prior to exposure, (b) reasonable attorneys’ fees, and (c) reasonable penalties. Consumer Advocacy Group, Inc. v. Kintetsu Ent. of Amer. (2006) 141 Cal.App.4th 46, 65. Approvals of consent judgments under Proposition 65 are deferentially reviewed for abuse of discretion, so long as the trial court adheres to correct legal criteria. Ibid., at p. 61.

Proposition 65, codified at California Health and Safety Code, section 25249.5, et seq., provides in pertinent part: ‘[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual....’ ” Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 963.

Under Proposition 65, “the amount of … sanctions would be based, in part, on ‘[w]hether the violator took good faith measures to comply with this chapter and the time these measures were taken.’ ” American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728, 742.

Unless a defendant is exempt from warning others a toxin, “it must provide a warning that is ‘reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure.’ ” Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 465 (quoting Cal.Code Regs., tit. 22, § 12601, subd. (a)). “[T]he framers of the initiative intended that the notice contain sufficient facts to facilitate and encourage the alleged polluter to comply with the law, and to encourage the public attorney charged with enforcement to undertake its duty. California regulations reflect the same intent to further settlement and public enforcement by requiring ‘adequate information from which to allow the recipient to assess the nature of the alleged violation.’ (Cal.Code Regs., tit. 22, § 12903(b)(2).).” Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, 750.

ANALYSIS

Plaintiff reasons that the Consent Judgment fulfills the statutory aims to ensure users of the subject product (1) are not exposed to lead above a 0.5 micrograms threshold, or (2) are given a clear and reasonable warning that such exposures may occur. Motion, 4:18-27.

The Court finds that the Consent Judgment is drafted to serve the public interest, by limiting exposures to lead and providing useful notices on products for consumers to make knowing and intelligent choices. Further, the Court finds that the proposed notices are clear, reasonable, understandable and informative. Additionally, the Court finds that the penalty amount ($5,000.00) is appropriate, considering that Defendant reportedly has been cooperative in complying with law. Finally, the amount of attorneys’ fees ($40,000.00) is justified, based upon market rates, attorney expertise, reasonable hours and favorable results.

CONCLUSION

The Court grants the motion as prayed, after considering all applicable factors, including those focused upon above. The Court will sign the proposed judgment submitted by Plaintiff.