Judge Lynne M. Hobbs, Case Number: 23STCV06259, Date: 2024-11-06 Tentative Ruling

Judge: Lynne M. Hobbs, Case: 23STCV06259, Date: 2024-11-06 Tentative Ruling

Case Number: 23STCV06259 Hearing Date: November 6, 2024 Dept: 61

CONSUMER PROTECTION GROUP, LLC, IN THE PUBLIC INTEREST v. DIGGS, INC., ET AL.

TENTATIVE

Plaintiff Consumer Protection Group, LLC’s Motion for Entry of Stipulated Consent Judgment is GRANTED.

Plaintiff to provide notice.

DISCUSSION

Health & Safety Code § 25249.7 states the criteria to approve a settlement of a Proposition 65 lawsuit, as follows:

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) The warning that is required by the settlement complies with this chapter.

(B) The award of attorney's fees is reasonable under California law.

and (5) The plaintiff subject to paragraph (4) has the burden of producing evidence sufficient to sustain each required finding. The plaintiff shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in a proceeding without intervening in the case.

(Health & Safety Code § 25249.7, subd. (f)(4)–(5).)

The proposed judgment here includes the following terms. Defendants Diggs, Inc. agrees not to sell or distribute the travel carrier that is the product alleged in this action to contain diethylhexyl phthalate (DEHP) in amounts exceeding those covered in Proposition 65, unless that product meets California’s warning requirements. (Proposed Judgment at p. 2.) Defendant shall pay a civil penalty of $5,000.00, of which 75% ($3,750.00) will go to California’s Office of Environmental Health Hazard Assessment, per Health & Safety Code § 25249.7. The remaining portion of civil penalties, plus $86,250.00 in attorney fees and costs, shall be paid to Plaintiff Consumer Protection Group, LLC (Plaintiff). (Proposed Judgment at p. 3.) Based on 112.1 hours of attorney work incurred in litigating this action, and the $4,027.00 in costs presented (Genish Decl. ¶ 22), this represents a fee lodestar of $82,223.00, with an average hourly rate of $733.48. A notice of settlement has been served upon the California Attorney General. (Genish Decl. ¶ 29n–29v.)

The criteria for determining the reasonableness of a civil penalty obtained under this statute are as follows:

(A) The nature and extent of the violation.

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

(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 & Safety Code § 25249.7, subd. (b)(2)(A)–(G).)

Here, Plaintiff argues that the $5,000 civil penalty is justified by the Defendant’s prompt agreement to undertake remedial measures, as well as the other penalties suffered as a result of the judgment, including its own attorney fees and its obligation to pay Plaintiff’s fees pursuant to the settlement. (Motion at pp. 8–9.) The willingness to remediate the violation per the terms of the settlement evidences a lack of willfulness in the violation. Thus the penalty is reasonable.

The attorney fees are also reasonable. Plaintiff’s counsel incurred 112.1 hours of attorney work, and these attorneys provide a breakdown of the work performed, including investigation and testing on the product at issue before and after litigation was commenced, in addition to the ordinary time spent in litigation. ((Genish Decl. ¶¶ 24–31.) The fees sought are reasonable.

Additionally, the warnings to be applied to Defendant’s products comply with regulations applicable to warnings under Proposition 65. (See 27 CCR § 25603. (Proposed Order at pp. 2–3.)

The settlement here is reasonable in the amount of the civil penalty charged, the amount of fees to be paid, and the warning requirements that Defendant has undertaken under Proposition 65.

The motion is therefore GRANTED.