Judge Kerry Bensinger, Case Number: 24STCV26110, Date: 2025-04-29 Tentative Ruling

On October 8, 2024, Plaintiff APS&EE, LLC filed a complaint against Defendant Mutual Industries North, Inc. for civil penalties and injunctive relief pursuant to Health and Safety Code section 25249.6 et seq.

Plaintiff now moves for approval of the settlement pursuant to Health and Safety Code section 25249.7(f) and entry of the consent judgment.

The Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65, was passed as a ballot initiative by the California voters and was designed to prevent the contamination of drinking water with, and generally protect the public from unknowing exposure to, harmful chemicals. (See generally 12 Witkin, Summary of California Law 10th (2005) Real Property, § 894, p. 1075.) Health & Safety Code section 25249.7 governs the enforcement of Proposition 65. Proposition 65 has both public and private enforcement mechanisms. (See Health & Saf. Code, § 25249.7(c), (d).) Violations are punishable by injunction (Health & Saf. Code § 24259.7(a)) and civil penalty (Health & Saf. Code § 24259.7(b)). In the case of private enforcement actions, parties may also recover attorney’s fees, pursuant to the provisions in Code of Civil Procedure section 1021.5, governing actions concerning important rights affecting the public interest.

Health & Safety Code section 24259.7(f) governs the role of the court in approving settlements and consent judgments for private actions to enforce Proposition 65. Section 24259.7(f)(4) provides, in relevant part, that:

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:

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

Plaintiff moves for a court order approving the consent judgment pursuant to Health & Safety Code section 25249.7(f).

Health & Safety Code section 25249.6 states, in relevant part: “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 & Saf. Code, § 25249.6.) “Health and Safety Code section 25249.6 (the central warning provision) requires that there be no ‘knowing and intentional’ exposure ‘without first giving clear and reasonable warning.’” (Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1214.) In order for a warning to be clear and reasonable, the manner of transmission must be reasonable, the message employed must be sufficiently clear to communicate the warning. (Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 Cal.App.4th 60, 67 fn. 6.)

Here, the parties’ settlement provides that, after the Effective Date, Defendant shall not distribute for sale in California, sell or offer for sale the products at issue—i.e., anchor bolts, including but not limited to 1/2in. x 8in.—unless (a) the e galvanizing solution in which the Products are submerged contains no more than 100 parts per million (0.01%) of lead, and the finished Products produce a test result no higher than 1.0 microgram of lead based on a wipe sample collected using NIOSH Method 9100 or equivalent (“Reformulated Product”), or (b) the Products are distributed, sold, or offered for sale with a clear and reasonable warning. (Proposed Consent Judgment, § 2.1; Novak Decl., ¶ 6.) For products that are not reformulated and thus require a warning, the parties’ settlement requires that the warning indicate the product can expose one to lead and that lead is known to cause cancer and birth defects or other reproductive harm. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) The warning also directs the consumer to www.P65Warnings.ca.gov for more information. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) With respect to how the warning is to be printed, the word “warning” is to be capitalized and in bold and is to be accompanied by a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline, which may be printed in black and white if the product label is not printed in color. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) The parties’ settlement also ensures that the warning will reach consumers as each product will carry the 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. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) The settlement ensures that products sold by Defendant on the internet will provide the warning message by a clearly marked hyperlink on the product display page or that it is otherwise prominently displayed to the purchaser before the purchaser completes their purchase of the product. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) Products provided by Defendant for a downstream entity to sell on the internet shall include an instruction that the entity comply with the warning requirements set forth in the settlement. (Proposed Consent Judgment, § 2.2; Novak Decl., ¶ 6.) The court finds the warning by the settlement is clear and reasonable and complies with the Health and Safety Code.

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. A computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value of the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) Such an approach anchors the trial court’s analysis to an objective determination of the value of the attorney’s services, ensuring that the amount awarded is not arbitrary. (Id. at 48, n.23.) After the trial 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 section 1717 award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-96.)

Here, the settlement provides for attorney’s fees and costs in an amount of $12,500.00. (Proposed Consent Judgment, § 3.2; Novak Decl., ¶ 12.) Counsel sets forth details as to what actions were undertaken in investigating, litigating, and settling this action. (Novak Decl., ¶ 12, Ex. A.) Counsel states that he bills at $695 per hour, paralegal fees were billed at $375 per hour, investigative tasks were billed at the investigator’s fee of $295 per hour, and that over $25,403.50 was actually incurred by Plaintiff as attorney’s fees and costs in the course of investigating, litigating, and settling this action. (Id.) Based on this, the court finds that the amount of attorney’s fees and costs provided to Plaintiff in the settlement is reasonable.

Health & Safety Code section 25249.7(b)(1) states, in relevant part: “A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law.” Section 25249.7(b)(2) states: “In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of 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 settlement provides for $1,000.00 in civil penalties, with 75% to be remitted to the State of California and the remaining 25% to be remitted to Plaintiff. (Proposed Consent Judgment, § 3.1; Novak Decl., ¶ 13.) The court finds $1,000.00 in civil penalties is reasonable.

Pursuant to 11 Cal. Code Regs. § 3201(b)(1), “a settlement that provides for the giving of a clear and reasonable warning, where there had been no warning provided prior to the sixty-day notice, for an exposure that appears to require a warning, is presumed to confer a significant benefit on the public.”

Here, the consent judgment does exactly that as it prompts Defendant to provide a clear and reasonable warning on products that did not include such a warning previously. Additionally, the consent judgment prompts Defendant to reformulate the products to contain no more than 100 parts per million (0.01%) of lead. (Proposed Consent Judgment, § 2.1; Novak Decl., ¶ 6.) The proposed consent judgment thus serves the public interest in that it provides for either a reformulation of the products to reduce the risk of exposure to lead or a warning for lead exposure for products that are not reformulated.

Based on the foregoing, the motion to approve Proposition 65 settlement and consent judgment is GRANTED.

Pursuant to the consent judgment, the default entered against Defendant on December 9, 2024, is VACATED.

Kerry Bensinger

Judge of the Superior Court