Judge Holly J. Fujie, Case 20STCV07954 2022-07-29 Tentative Ruling

The Court has considered the moving papers. No opposition papers were filed. Any opposition papers were required to have been filed and served at least nine court days before the hearing under California Code of Civil Procedure section 1005, subdivision (b).

On February 26, 2020, Plaintiff filed a complaint (the “Complaint”) alleging violations of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, Health & Safety Code section 25249.5, et seq. (“Proposition 65”) in connection to the sale of eye kits containing polymers (the “Covered Products”). Plaintiff and Defendant Pacific World Corporation (“Pacific”) have resolved this action. The terms of the resolution are contained in a consent judgment (the “Consent Judgment”). (See Declaration of Reuben Yeroushalmi (“Yeroushalmi Decl.”) ¶ 4, Exhibit A.)

Health & Safety Code § 25249.7, subdivision (f)(4) provides: 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) Any warning that is required by the settlement complies with this chapter;
   (B) Any award of attorney's fees is reasonable under California law; and
   (C) Any penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b). (Health & Safety Code § 25249.7, subd. (f)(4).)

Proposition 65 provides that 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. (Health & Safety Code § 25249.6.) To be “clear and reasonable,” the warning must be displayed “with such conspicuousness, as compared with words, statements, designs, or devices in the label, labeling or display as to render it likely to be read and understood by ordinary individual under customary conditions of purchase or use.” (27 CCR § 25601, subd. (b)(3).) The message must clearly communicate that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm. (Id.) Reformulation of a product, changes in air emissions, or other changes in the defendant's practices which reduce or eliminate the exposure to a listed chemical, in lieu of the provision of a warning, constitute a sufficient showing of public benefit. (11 Cal. Code. Regs., tit. 11, § 3201, subd. (b)(2).)

The Consent Judgment provides that Pacific will place a warning on the Covered Products that states: “WARNING: This product can expose you to chemicals including DEHP, 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.” (Yeroushalmi Decl., Exhibit A § 3.2.) In addition, Pacific will be forbidden from selling any of the Covered Products unless the level of DEHP does not exceed 0.1 percent.

The Court finds that the ban the sale of products containing over 0.1% of DEPH and the warning on products that Pacific continues to sell comply with Proposition 65.

Plaintiff’s counsel seeks payment of $38,000 to cover all attorney’s fees involved in prosecuting this action. (Yeroushalmi Decl. ¶ 20.) This amount is lower than the lodestar amount that Plaintiff’s counsel incurred in attorney’s fees, which totals to approximately $87,133.00. (See Yeroushalmi Decl. ¶¶ 20-24.) In light of the work performed on this matter, from investigation to settlement negotiation, the Court finds that the requested amount is fair and reasonable.

In assessing the reasonableness of a civil penalty for a Proposition 65 violation, the Court must 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; and

(G) Any other factor that justice may require. (Health & Safety Code § 25249.7, subd. (b)(2).)

The Consent Settlement provides that Pacific is to pay $9,715 in civil penalties, 75% of which ($7,286.25) will be paid to the Office of Environmental Health Hazard Assessment (the “OEHHA”). Pacific will also pay Plaintiff $7,285 as an additional settlement payment (the “ASP”). The ASP may not exceed the total amount of the civil penalty and must be used to fund activities that address that the same public harm as those cause by Pacific. (11 CCR § 3204, subd. (b)(1)-(2).) The Court finds that the ASP is proper as it does not exceed the amount to be paid to the OEHHA and will be spent on activities related to deterring the harm caused by Pacific. (See Declaration of Michael Marcus (“Marcus Decl.”) ¶ 6.) The Court finds that the civil penalty and ASP are reasonable.

Proposition 65 litigation is necessarily brought to vindicate the public interest, the trial court almost must ensure that its judgment serves the public interest. (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 62.) In order for the court to stamp a consent agreement with the judicial imprimatur, the court must determine that the proposed settlement is just. (Id. at 61.)

This action resulted in Pacific reformulating and placing a warning on the Covered Products. The Court finds that these outcomes serve the public interest.

In consideration of the current COVID-19 pandemic situation, the Court¿strongly¿encourages that appearances on all proceedings, including this one, be made by LACourtConnect if the parties do not submit on the tentative.¿¿If you instead intend to make an appearance in person at Court on this matter, you must send an email by 2 p.m. on the last Court day before the scheduled date of the hearing to¿SMC_DEPT56@lacourt.org¿stating your intention to appear in person.¿ The Court will then inform you by close of business that day of the time your hearing will be held. The time set for the hearing may be at any time during that scheduled hearing day, or it may be necessary to schedule the hearing for another date if the Court is unable to accommodate all personal appearances set on that date.¿ This rule is necessary to ensure that adequate precautions can be taken for proper social distancing.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court