Judge Holly J. Fujie, Case Number: 22STCV00868, Date: 2024-03-27 Tentative Ruling

On January 10, 2022, Plaintiff Berj Parseghian (“Plaintiff”) filed a complaint for injunctive relief and civil penalties against Defendant Whole Foods Market (“Defendant”) for violation of Proposition 65, Health & Safety Code section 25249.6.^{^[1]} On January 22, 2024, Plaintiff filed the instant motion for entry of stipulated consent judgment.

Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986, prohibits businesses from knowingly exposing individuals to any chemical known to cause cancer or reproductive toxicity without first providing a clear and reasonable warning. (Health and Safety Code § 25249.6.) Chemicals requiring such warning, i.e., “listed chemicals,” are listed at 27 CCR section 27001 (b).

In addition to government prosecutors, the Act can be enforced by any person in the public interest. (§ 25249.7(d).) To bring such a suit, a person must first give 60-days notice of the alleged violation to the violator, the California Attorney General, and the district attorney and city attorney in whose jurisdiction the alleged violation occurred. (§ 25249.7(d)(1).) For violations of section 25249.6, the notice must include a certificate of merit that states that the person executing the certificate has consulted with an expert regarding the facts concerning the exposure and that there is a reasonable and meritorious case for the private action. (Id.) If the government prosecutors decline to commence a suit, the private party may do so. (§ 25249.7(d)(2).)

In reviewing and approving a settlement of a Proposition 65 action, a court must ensure that its judgment serves the public interest. (Consumer Advocacy Grp., Inc. v. Kintetsu Enters. Of Am. (2006) 141 Cal.App.4th 46, 62.) It is required to make findings that (a) the warning required by the settlement complies with law, (b) the award of attorney’s fees is reasonable, and (c) the penalty is reasonable. (§ 25249.7(f)(4).) The plaintiff carries the burden of producing evidence to sustain each required finding. (§ 25249.7(f)(5).)

In addition to the statutory criteria, the court must also review justiciability and the adequacy of notice to the Attorney General. (Consumer Advocacy Grp., supra, 141 Cal.App.4th at 65.)

The plaintiff must serve the moving papers on the Attorney General at least 4 days before the motion hearing on settlement approval. (§ 25249.7(f)95); 11 CCR § 3003.) The Attorney General may appear and participate in the settlement-approval proceeding without intervening in the suit. (§ 25249.7(f)(5).) The Attorney General has standing to appeal an approved Proposition 65 settlement. (Consumer Def. Grp. V. Rental Hous. Indus. Members (2006) 137 Cal.App.4th 1185, 1205.)

Here, Plaintiff’s moving papers were timely filed on January 19, 2024, with a hearing date set for March 27, 2024. (POS attached to Krikorian Decl.) However, the proof of service indicates that the papers were only served on Plaintiff’s counsel, and not on the Office of the Attorney General. Thus, Plaintiff has not satisfied the notice requirements.

Plaintiff has submitted a copy of the proposed consent judgment. Pursuant to the Consent Judgment, after the Effective Date, which is the date the Consent Judgment is approved and entered by the Court and written notice of entry of the Consent Judgment is provided, Defendant shall be permanently enjoined from manufacturing for sale in the State of California, “Distributing into the State of California,” or directly selling in the State of California, any Covered Product that exposes a person to a daily lead exposure level of more than 0.5 micrograms of lead per day, or a level permissible by Preposition 65 regulation in effect on or after the Effective Date, unless it meets the warning requirements under Section 3.2. As used in this Consent Judgment, the term “Distributing into the State of California” shall mean to directly ship a Covered Product into California for sale in California or to sell a Covered Product to a distributor that Defendant knows or has reason to know will sell the Covered Product in California. The injunctive relief in Section 3 does not apply to any Covered Product that has left the possession, and is no longer under the control of Defendant prior to the Effective Date and all claims as to such Covered Products are released in thus Consent Judgment. (Consent Judgment, ¶ 3.1.1.) The Consent Judgment also states that if Defendant is required to provide a warning, one of the following warnings must be utilized:

WARNING: Consuming this product can expose you lo chemicals including lead, 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/food.

WFM shall use the phrase “cancer and” in the Warning has reason to believe that the “Daily Lead Exposure Leve” is greater than 15 micrograms of lead.

The foregoing warning proposed by the settlement is clear and reasonable, and satisfies the warning requirement under Health and Safety Code, section 25249.6.

The fees setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate, which may then be adjusted based on consideration of factors specific to the case to fix the fee at the fair market value of the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) After the court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

Plaintiff seeks to recover $75,000.00 in attorney’s fees and costs; and Defendant has consented to the amount. (Consent Judgment ¶ 5.) Plaintiff has brought evidence in support that Plaintiff has actually incurred a lodestar of $75,000.00 in fees and costs. (Krikorian Decl. (Attorney and Staff Billing Rates) ¶ 6, Exh. D.) The amount represents 87 hours ($400 hourly rate) by Tro Krikorian, 53 hours ($550 hourly rate) by Vache Thomassian, and 17 hours ($550 hourly rate) by Caspar Jivalagian. (Id. ¶¶ 6.) The hours expended were on the following: (1) Pre-Litigation Research & Development; (2) Background research on the Covered Product; (3) Exchange and Review of Information; (4) Preparation, Review, and Filing of Complaint; (5) Written Discovery; (6) Depositions and Motion to Compel; (7) Litigation Strategy, Research of Defenses and internal review of file; (8) Consent Judgment Terms & Modifications; (9) Preparation, Review, and Filing of Motion Packet; (9) Communications with Opposing Counsel Throughout; (10) Communications with Client Throughout; and (11) Communications witl1 Experts Throughout. (Id.) The Court finds that the amount of $75,000.00 represents reasonable attorney’s fees and costs for the work performed. Accordingly, the attorney’s fees and costs are approved.

Civil penalties are not to exceed $2,500 per day for each violation. (Health & Saf. Code § 25249.7(b)(1).) In assessing the amount of a civil penalty, the court must consider:

(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.

Under the Consent Judgment, Defendant has agreed to pay civil penalties of $10,000.00. (Consent Judgment, ¶ 4.) The amount is to be apportioned: 75% remitted to State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and the remaining 25% remitted to Plaintiff. (Id.; Health & Saf. Code §¿25249.12(c),(d).) Plaintiff has offered evidence in support that the amount of civil penalties is reasonable, based on each of the factors under Health & Safety Code, section 25249.7(b)(2). (Mot. at pp. 7-8; Krikorian Decl. ¶¿13.) In consideration of that evidence, the Court finds that the civil penalties of $10,000.00 are reasonable and thus approved.

As the warning required by the settlement complies with the law, the award of attorney’s fees is reasonable, and the penalty is reasonable, the motion to approve the stipulated judgment is GRANTED provided Plaintiff submits evidence to the Court prior to or at the hearing that the moving papers were served on the Office of the Attorney General on the same date indicated on the original Proof of Service. If service was not in fact effected on that date, then the hearing will be continued by two weeks to April 9, 2024 at 8:30 to allow proper service to be effected.

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

[1] Unless otherwise noted, all further statutory citations are to the Health & Safety Code.