Judge: Jon R. Takasugi, Case: 22STCV37581, Date: 2023-08-29 Tentative Ruling

Case Number: 22STCV37581    Hearing Date: August 29, 2023    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

            Plaintiff’s motion to approve the parties’ Proposition 65 action and enter the Consent Judgment is GRANTED.  Furthermore, the OSC re: monetary sanctions against Plaintiff’s counsel for failing to appear June 16, 2023, is discharged.

            On 11/30/2022, Plaintiff APS&EE, LLC (Plaintiff) filed suit against Fastener USA Systems, Inc. (Defendant) alleging a violation of Health and Safety Code section 25249.5 et seq.

            Plaintiff now submits the parties’ Consent Judgment to this Court for approval. 

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

            The Consent Judgment provides, among other things,  that as of the Effective Date, Defendant shall not distribute for sale in California, sell or offer for sale the Products in California unless (a) the galvanizing solution in which a Product is submerged has a lead content by weight of no more than 100 parts per million (0.01%), and the finished Product produces a test result no higher than a ratio of 1.0 microgram of lead per 100 square centimeters based on a wipe sample collected using NIOSH Method 9100 or equivalent (“Reformulated Products”), or (b) the Products are distributed, sold, or offered for sale with a clear and reasonable warning. Whenever said warning is required, Defendant shall provide a warning statement substantially similar to the following:

WARNING: This product can expose you to 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.

            Defendant may alternatively use any warning that substantially and materially complies with the method and content requirements of 27 CCR Section 25600 et. seq., and amended subsequently thereafter, or other text or methods authorized or mandated by those regulations, or other State of California regulations or legislation pertaining to Proposition 65 warnings related to such Products. Each warning shall be accompanied by a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the label for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word “WARNING”. The Products shall carry said warning directly on each unit, label, or package, with such conspicuousness as compared with other words, statements or designs as to render it likely to be read and understood by an ordinary consumer prior to sale. A Product that is sold by Defendant on the internet to persons located in California shall also provide the warning message by a clearly marked hyperlink on the product display page, or otherwise prominently displayed to the purchaser before the purchaser completes his or her purchase of the Product. For Products that Defendant provides for a downstream entity to sell on the internet, Defendant shall include an instruction that the entity comply with the warning requirements of this section.

The Court finds that the proposed warning is “clear and reasonable” because it uses the language required by statute. (Cal. Code Regs., tit. 27, § 25607.2.) The Court also finds the agreement to be fair and reasonable because is confers a significant benefit to the public, and contains no terms that are contrary to law or in violation of public policy. (Rich Vision Centers, Inc. v. Board of Medical Examiners (1983) 144 Cal.App.3d 110, 114-116.

Penalties      

Defendant has agreed to pay civil penalties in the amount of $1,500.00. The civil penalty amount is to be apportioned with 75% remitted to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”), and the remaining 25% remitted to Plaintiff. Health and Safety Code section 25249.12(c) & (d)

A.    Civil 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.

(Health & Saf. Code § 25249.6.)

Here, the Court is persuaded that the civil penalty is reasonable based on the following: (1) there is no evidence that a civil penalty of $1,500 will inflict an unreasonable economic effect; and (2) Defendant made a good faith effort to resolve its violation.

B.    Attorneys Fees and Costs

Defendant has agreed to reimburse Plaintiff’s attorneys’ fees and costs in the amount of $16,000.00

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:

-         Investigator Rate: $215/hr

-         Paralegal Rate: $315/hr

-         Attoreny Rate: $595/hr

(Novak Decl. ¶¶ 11-12.)

After review of Lukas Novak’s declaration and attached description of legal services performed, alongside Defendant’s express consent to these fees per the Consent Judgment, the Court finds the attorney fees amount to be reasonable.

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

It is so ordered.

Dated:  August    , 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.  For more information, please contact the court clerk at (213) 633-0517.