Judge Christopher K. Lui, Case Number: 24STCV08365, Date: 2024-11-13 Tentative Ruling

The following tentative ruling is issued pursuant to Rule of Court 3.1308 at 12:41 p.m. on November 12, 2024.

Notice of intent to appear is REQUIRED pursuant to California Rule of Court 3.1308(a)(1). The Court does not desire oral argument on the motion addressed herein.

As required by Rule 3.1308(a)(1), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 by 4:00 p.m. on November 12, 2024.

Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776.

Per Rule of Court 3.1308, if notice of intention to appear is not given, oral argument will not be permitted.

Defendants sell a product which exposes consumer to bisphenol a (BPA) when they use Defendant’s case products, without a warning that complies with Proposition 65, Health & Safety Code § 25249.5, et seq.

Plaintiff now moves for approval and entry of the consent judgment agreed upon by between Plaintiff and Defendant Adir International, LLC.

Plaintiff Gabriel Espinoza’s motion to approve entry of the Consent Judgment is GRANTED.

Plaintiff moves for approval and entry of the consent judgment entered into between Plaintiff and Defendant Adir International, LLC.

(4) If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings:

   (A) The warning that is required by the settlement complies with this chapter.

   (B) Any award of attorney's fees is reasonable under California law.

   (C) The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).

(2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:

(D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.

(F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.

1. Re: Any warning that is required by the settlement complies with this chapter.

A copy of the Consent Judgment was presented to the Court. Pursuant to § 3.1 of the Consent Judgment, beginning 90 days after the Effective Date, Settling Defendant shall provide a clear and reasonable exposure warning as set forth in §§ 3.1 and 3.2 as to all Covered Products (defined in § 2.1) that Defendant manufacturers ,imports, distributes, sells, or offers for sale in California.

The foregoing satisfies the warning requirement set forth in Health and Safety Code § 25249.6[1]. As such, this requirement is satisfied.

Health and Safety Code, § 25249.7(f)(4)(B), at least implicitly, authorizes recovery of reasonable attorney’s fees if there is a settlement. Plaintiff seeks to recover $38,000 as reimbursement of attorney’s fees, expert and investigation fees and related costs, to which Defendant has agreed. Consent Judgment, ¶ 4.2. Plaintiff indicates that approximately $87,000 in attorneys’ fees and costs were incurred, as set forth in the Declaration of Evan J. Smith, ¶¶ 15 – 18; Exh. C thereto. The Court finds that the amount of attorney’s fees is reasonable.

Pursuant to Health & Safety Code § 25249.7(b), Defendant will pay $4,000 to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and Plaintiff as civil penalties. 75% will be paid to OEHHA and 25% will be paid to Plaintiff. (Consent Judgment, § 4.1.)

Cal. Health & Safety Code § 25249.7(b) sets forth the following factors to be considered in assessing the amount of civil penalty:

a. The nature and extent of the violation and the number of, and severity of, the violations.

Plaintiff indicates that users will be exposed to BPA by dermal exposure through direct skin contact with the products. Per the Smith Declaration, ¶ 14, Defendant reviewed its sales records and has advised Plaintiff that during the relevant time period Adir sold fewer than one thousand units of the Products in California sans an exposure warning. The retail sales price of the Axessorize ProShield Plus iPhone cases was $ 19.97; the Torras Upro Clear iPhone cases was $28.99; the Hover-1™ helmets with detachable visors was $59.99; the S/rech Matrix iPhone cases was $ 19.97; the NimbusVapor Air 2 clear cases was $7.97; and the Incase hardshell cases for MacBooks was $29.97.

Given the low per unit price and relatively low number of units sold, these factors would suggest that a lower penalty amount would be reasonable.

It does not appear that $4,000 would have a detrimental effect on defendant. Given the low per unit sale price, the $4,000 penalty should give Defendant an incentive to comply with Proposition 65 in the future.

d. Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.

Plaintiff does not indicate whether Defendant took good faith measures and when. It appears such measure only occurred after the Consent Judgment was entered into.

Plaintiff indicates that Defendant maintains that it did not intentionally ignore, disregard, or violate Proposition 65. Once Adir was apprised of Plaintiff's claims, it immediately took action to resolve the claims and make sure that, going forward, there is no question that it complies with Proposition 65. There is no indication that Defendant acted willfully in violating Proposition 65.

f. The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.

The $4,000 penalty is probably significant enough to deter both Defendant and the regulated community as a whole. The Consent Judgment, if approved, will become a matter of public record, which may serve as incentive for other companies to comply with Proposition 65 to avoid payment of penalties.

Penalties will be evaluated based on the factors set forth in the Health and Safety Code section 25249.7(b)(2). The following factors are "[other factors] which justice may require" to be considered within the meaning of Health and Safety Code section 25249.7(b)(2)(G):

(a) A settlement with little or no penalty may be entirely appropriate. Civil penalties, however (75% of which must be provided to the Department of Toxic Substances Control) should not be "traded" for payments of attorney's fees.

There does not appear to be other factors which justice may require the Court to take into consideration.

The Consent Judgment does not call for any payments to an entity as “offset” to the civil penalty. (11 CCR § 3203(d).)

Here, the public release is specifically limited to Defendant’s Covered Products, and Plaintiff individually released claims regarding the Covered Products. The scope of this release is proper. (Consent Judgment, § 5.)

In light of the foregoing, the motion to approve entry of the Consent Judgment is GRANTED.

[1] “No 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, except as provided in Section 25249.10.” *Health & Saf .Code § 25249.6.)