Judge: Jon R. Takasugi, Case: 22STCV12549, Date: 2023-03-28 Tentative Ruling

Case Number: 22STCV12549    Hearing Date: March 28, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

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

On August 6, 2020, Plaintiff Berj Parseghian (Plaintiff) file suit against Seven Sundays, LLC and Whole Foods Market (collectively, Defendants) seeking injunctive relief and civil penalties.

            Plaintiff now moves for an order to enter judgment pursuant to the terms of the stipulated settlement reached by the parties in this case on 1/20/2023. 

            The motion is unopposed.

Legal Standard

Pursuant to Proposition 65, any business that exposes individuals to chemicals known to the State of California to cause cancer or reproductive harm must provide those individuals with a clear and reasonable warning. (Health & Saf. Code § 25249.6.)

Private individuals may sue to enforce Proposition 65 if they give the requisite 60-day notice of intent to sue to the public prosecutors and to the potential defendants. (Health & Saf. Code § 25249.7(d); see also Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1556 (explaining that Proposition 65 “grants authority to ‘any person’ to sue in the public interest” so long as the statute’ “procedural prerequisites” are satisfied).) Health & Safety Code section 25249.7(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.

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

Discussion

Injunctive Relief

Under the Consent Judgment, Defendant will ensure that users of the subject product (i.e., Grain Free Cereal) either: (1) are not exposed to cadmium above the 4.1 micrograms threshold set by OEHHA; or (2) are given a clear and reasonable warning that such exposures may occur.

To effectuate these goals, the Consent Judgment Provides, in pertinent part, that “beginning on the Effective Date, Seven Sundays 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 expose a person to a "Daily Cadmium Exposure Level" of more than 4.1 micrograms of cadmium per day, 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 Seven Sundays 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 was manufactured prior to the Effective Date and all claims as to such Covered Product are released in this Consent Judgment. For the purposes of this Consent Judgment, the "Daily Cadmium Exposure Level" shall be measured in micrograms, and shall be calculated using the following formula: micrograms of cadmium per gram of product, multiplied by grams of product per serving of the product as stated on the label, multiplied by servings of the product per day stated on the label, which equals micrograms of cadmium exposure per day. If the label contains no recommended daily servings, then the number of recommended daily servings shall be one.” (Consent Judgment ¶ 3.l)

Warnings consistent with those outlined in the Consent Judgment will be provided.

Penalties

            Defendant agrees to pay $7,000.00 in penalties.

In considering the civil penalty, the Court shall consider the following:

(A) The nature and extent of the violation.

(B) The number of, and severity of, the violations.

(C) The economic effect of the penalty on the violator.

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

(E) The willfulness of the violator’s misconduct.

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

(G) Any other factor that justice may require.

            Here, the Court is persuaded that the civil penalty is reasonable based on the following: (1) $7,000.00 will not inflict an unreasonable economic effect upon Defendant or the protein chip industry; and (2) Defendant has made good faith efforts to resolve its violation.

Attorneys Fees and Costs

Defendant has agreed to pay $43,000.00 as imbursement for fees and out-of-pocket litigation expenses.

In determining whether the requested attorney’s fees are “reasonable,” the Court’s first step involves the lodestar figure—a calculation based on the number of hours reasonably expended multiplied by the lawyer’s hourly rate. The lodestar figure may then be adjusted, based on consideration of facts specific to the case, in order to fix the fee at the fair market value for the legal services provided. (Gorman v. Tassajara Development Corp. (2008) 162 Cal.App.4th 770, 774 [internal citations omitted].)

 In determining whether to adjust the lodestar figure, the Court may consider the nature and difficulty of the litigation, the amount of money involved, the skill required and employed to handle the case, the attention given, the success or failure, and other circumstances in the case. (EnPalm LLC v. Teitler (2008) 162 Cal.App.4th 770, 774; PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.)

“‘The reasonable market value of the attorney's services is the measure of a reasonable hourly rate. [Citations.] This standard applies regardless of whether the attorneys claiming fees charge nothing for their services, charge at below-market or discounted rates, represent the client on a straight contingent fee basis, or are in-house counsel. [Citations.]’ ” (Center For Biological Diversity v. County of San Bernardino (2010) 188 Cal.App.4th 603, 619.)

            Here, Plaintiff’s counsel charged the following hourly rates:

·        Vache Thomassian: $550/hr

·        Tro Krikorian: $400/hr

Vache Thomassian has been in practice since 2013. (Krikorian Decl., ¶ 4.) Tro Krikorian has been in practice since 2017. (Krikorian Decl., ¶ 1.) Based on the nature of the litigation, counsels’ background and experience, and the fact that the rate charged was mutually agreed upon by the parties, the Court finds this rate reasonable. Moreover, a review of the legal services provided suggests that a reasonable number of hours were expended providing these services. 

Based on the foregoing, the Court finds that the settlement is fair and reasonable, and grants Plaintiff’s motion.

It is so ordered.

Dated:  March    , 2023

   Hon. Jon R. Takasugi
   Judge of the Superior Court

Parties who intend to submit on this tentative must send an email to the court at smcdept17@lacourt.org by 4 p.m. the day prior as directed by the instructions provided on the court website at www.lacourt.org.  If a party submits on the tentative, the party’s email must include the case number and must identify the party submitting on the tentative.  If all parties to a motion submit, the court will adopt this tentative as the final order.  If the department does not receive an email indicating the parties are submitting on the tentative and there are no appearances at the hearing, the motion may be placed off calendar. 

            Due to Covid-19, the court is strongly discouraging in-person appearances.  Parties, counsel, and court reporters present are subject to temperature checks and health inquiries, and will be denied entry if admission could create a public health risk.  The court encourages the parties wishing to argue to appear via L.A. Court Connect.  For more information, please contact the court clerk at (213) 633-0517.  Your understanding during these difficult times is appreciated.