Judge: Gregory Keosian, Case: 18STCV02562, Date: 2023-03-02 Tentative Ruling

Case Number: 18STCV02562    Hearing Date: March 2, 2023    Dept: 61

Plaintiff Consumer Advocacy Group, Inc.’s Motion to Approve and Enter Consent Judgment between Plaintiff Consumer Advocacy Group and Defendant Chevalier International (USA) Inc. is GRANTED.

I.                   MOTION TO APPROVE CONSENT JUDGMENT

This is an action for violation of Proposition 65. Health & Safety Code § 25249.7 provides the criteria to approve a settlement of a Proposition 65 lawsuit, as follows:

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) The 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).

(5) The plaintiff subject to paragraph (4) has the burden of producing evidence sufficient to sustain each required finding. The plaintiff shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in a proceeding without intervening in the case.

(Health & Safety Code § 25249.7, subd. (f)(4)–(5).)

The proposed judgment here includes the following. Defendant Chevalier International (USA) Inc. (Defendant) agrees to either reformulate its products to bring them below the Proposition 65 threshold or to provide a warning as prescribed by the statute. (Proposed Judgment § 3.1.) Defendant is to pay $140,000.00, of which $11,440.00 are civil penalties, to be apportioned 75/25 between California’s Office of Environmental Health Hazard Assessment (OEHHA) and CAG. (Proposed Judgement § 4.1.) $120,000 are to go to CAG’s attorney fees and costs. (Proposed Judgment § 4.1.3.) $11,420, including CAG’s share of the civil penalties, will go to CAG directly. (Proposed Judgment § 4.1.1(a), 4.1.2.) The settlement includes a release of all claims related to Proposition 65 and the covered products. (Proposed Judgment § 5.1.2.) Both parties have signed the agreement. The court finds that the settlement agreement is a genuine agreement between the parties, and that the attorneys’ fees and civil penalties amounts are reasonable.

The $120,000 sought in attorney fees is also reasonable in light of the lodestar claimed by CAG’s counsel, which is $124,936.80, representing 251.7 hours of work at an average hourly rate of $496.37. (Yeroushalmi Decl. ¶ 22.) Plaintiff has further supported the adequacy of the civil penalty and overall settlement amount as a meaningful deterrent to the conduct alleged. (Motion at pp. 15–20.)

The Health & Safety Code states, “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 & Safety Code § 25249.6.) The proposed consent judgment here provides that Defendant is to place on all covered product labels a Proposition 65 warning notifying the consumers of the chemicals contained in the products and directing the conusmers to P65warnings.ca.gov for more information concerning said warnings. (Proposed Judgment § 3.2.) The court finds that the agreement complies within the warning requirement.

Accordingly, the Motion to Approve Stipulated Consent Judgment is GRANTED.

Plaintiff to provide notice.