Judge: Lynne M. Hobbs, Case: 24STCV01123, Date: 2025-02-27 Tentative Ruling

Case Number: 24STCV01123    Hearing Date: February 27, 2025    Dept: 61

APS&EE, LLC, A LIMITED LIABILITY COMPANY vs LENOX CORPORATION, A CORPORATION

Tentative

Plaintiff APS&EE LLC’s Motion to Approve Proposition 65 Settlement is GRANTED.

Plaintiff to give notice.

Analysis

I. MOTION TO APPROVE CONSENT JUDGMENT

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

(4) 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.

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

(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 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.

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

Here, Plaintiff APS&EE, LLC (Plaintiff) seeks court approval of a stipulated judgment with Defendant Lenox Corporation (Defendant) with the following terms. Defendant is to make a $1,000 penalty payment of which 75% of which is to go to the California Office of Environmental Health Hazards Assessment with the remainder to be given to Plaintiff. (Proposed Judgment § 3.1..) Defendant is to pay attorney fees to Plaintiff in the amount of $13,000.00. (Id. at § 3.2.) Defendant is to place warnings on their subject product in compliance with 27 CCR § 25603. (Proposed Judgment § 2.)

Plaintiff argues that the $1,000 penalty is justified by the relatively scant number of sales of the lead-contaminated product in California, and the likely proportion of the penalty amount in relation to Defendant’s total sales of the offending product in California. (Motion at pp. 14–15.)* Plaintiff also identifies Defendant’s willingness to settle promptly as an indication of good faith. (Motion at pp. 15–16.) Plaintiff’s counsel also provides logs of the hourly work expended on this action, which totaled 47.2 hours of attorney and paralegal time, which divided into the $13,000.00 fee award yields a reasonable hourly rate of roughly $275 per hour. (Novak Decl. Exh. A.) The fees and penalties are reasonable in light of the above.

The motion is therefore GRANTED.

*The sales figures provided by Defendant indicated that 1,008 units were sold nationwide at a cost of $8 each, with the proceeds split with a now-bankrupt retailer. (Novak Decl. ¶ 16.)