Judge: Eddie C. Sturgeon, Case: 37-2021-00049608-CU-MC-CTL, Date: 2024-01-03 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - January 03, 2024

01/04/2024  08:15:00 AM  C-67 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Eddie C Sturgeon

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Civil - Unlimited  Misc Complaints - Other Motion Hearing (Civil) 37-2021-00049608-CU-MC-CTL JAMISON VS ALBERT EINSTONES LLC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion - Other, 11/15/2023

Plaintiff Charles Jamison's unopposed Motion to Confirm Proposed Consent Judgment is GRANTED.

The court will confirm the consent judgment. Plaintiff's Motion for Attorneys' Fees is DENIED.

Under section 1021.5, a court may award attorney fees to a successful party in any action that 'resulted in the enforcement of an important right affecting the public interest' if the litigation fulfilled certain criteria - a significant benefit to the general public or large class of people; the necessity and financial burden of private enforcement makes the award appropriate; and, in the interests of justice, the attorney fees should not be paid out of any recovery obtained.

California regulations provide detailed guidance on when fees ought to be awarded under Section 1021.5 in a Proposition 65 case. First, a Proposition 65 plaintiff is successful for the purposes of fees if their action 'was the cause or 'catalyst' of the change in in conduct.' (See Cal. Code Regs, tit. 11, § 3201(a).) Additionally, California Code of Regulations, Title 11, Section 3201(b)(1) states, in part: 'In a case alleging failure to warn, 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. If there is no evidence of an exposure for which a warning plausibly is required, there is no significant public benefit, even if a warning is given. If the relief consists of minor or technical changes in the language, appearance, or location of a warning in a manner that is not likely to significantly increase its visibility or effectiveness in communicating the warning to the exposed persons, there is no significant public benefit.' (Emphasis added.) Here, Defendant's warning included, all in bold print, an equilateral triangle with an image of a cannabis leaf and an exclamation mark inside the triangle, and the letters 'CA' under the triangle. Next to the triangle was the following text: 'GOVERNMENT WARNING: THIS PRODUCT CONTAINS CANNABIS, A SCHEUDLE I CONTROLLED SUBSTANCE. KEEP OUT OF REACH OF CHILDREN AND ANIMALS.

CANNABIS PRODUCTS MAY ONLY BE POSSESSED OR CONSUMED BY PERSONS 21 YEARS OF AGE OR OLDER UNLESS THE PERSON IS A QUALIFIED PATIENT. THE INTOXICATING EFFECTS OF CANNABIS PRODUCTS MAY BE DELAYED UP TO TWO HOURS. CANNABIS USE WHILE PREGNANT OR BREASTFEEDING MAY BE HARMFUL. CONSUMPTION OF CANNABIS PRODUCTS IMPAIRS YOUR ABILITY TO DRIVE AND OPERATE MACHINERY. PLEASE USE EXTREME CAUTION.' Below this text was another triangle with an exclamation mark inside, followed by the text: Calendar No.: Event ID:  TENTATIVE RULINGS

3072634  1 CASE NUMBER: CASE TITLE:  JAMISON VS ALBERT EINSTONES LLC [IMAGED]  37-2021-00049608-CU-MC-CTL 'WARNING: Cancer & Reproductive Harm.' Underneath that was the text 'www.P65Warnings.ca.gov.' Plaintiff described to Defendant the following alleged deficiencies: 'Pursuant to 27 CCR § 25603 the equilateral triangle is not in yellow which is required under the applicable regulation. The regulations clearly require the triangle to be in yellow if there is yellow dye on the label. A cursory review shows that a lemon is present, so the triangle must be in yellow as well. Second, the word 'WARNING' is not in bold as required. Last, the warning is not compliant with 27 CCR § 25602 as the type size is not in compliance with subpart (4) because it is smaller than the consumer information contained on the product.' (See ROA 40, Oppo., Ex. 3.) The evidence submitted demonstrates that Defendant had a warning on its product prior to Plaintiff's notice or lawsuit, even if the warning may not have been technically sufficient in some minor respects as alleged by Plaintiff. Accordingly, had Defendant merely corrected its warning consistent with Plaintiff's notice, no significant public benefit would have been conferred under California Code of Regulations, title 11, section 3201(b)(1) such that fees would be warranted. Plaintiff argues that Defendant is estopped from opposing the fees motion on this basis since it agreed to cease sales or only resume sales upon including a clear and reasonable warning compliant with the relevant laws. In essence, Plaintiff's position appears to be that the consent judgment requires fees, but that is not so. (ROA 36, Ex. A, ¶ 3.2.) Plaintiff may have been the successful party and even conferred a public benefit, but the case law and regulations allow for the court to determine upon confirming a settlement whether a significant public benefit was conferred and fees are reasonable under California law. Moreover, the issue of fees here was expressly left to motion and Defendant was entitled to litigate whether Plaintiff met the standard for fees on this motion. (Ibid.) Defendant also stopped selling the product entirely in August 2022, raising the question of whether Plaintiff should be entitled fees since Defendant stopped sales rather than merely change the warning.

Plaintiff argues that, under the prevailing case law, he is entitled to a presumption that his action was the cause or catalyst of Defendant stopping its sales. But that presumption is rebuttable and Defendant has submitted a declaration from its CEO stating that it 'stopped manufacturing and selling all Simply Stoneade products in August 2022 because the products were not very profitable and our company wanted to shift its focus to other lines of products that had a greater chance of generating profits for the business. . . . Albert Einstone's decision to stop selling Simply Stoneade products in August 2022 had nothing to do with Plaintiff's filing of this lawsuit.' (ROA 40, Ladraa Decl., ¶ 3.) In light of the warnings provided prior to Plaintiff's actions and the ease with which the allegedly required corrections could have been made, the court finds those statements credible and sufficient to rebut the presumption that Plaintiff's action led to Defendant ceasing manufacture and sales of the product.

For these reasons, the court finds that no significant public benefit was conferred for the purposes of fees under Code of Civil Procedure section 1021.5. The motion for fees is denied.

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