Judge: Lynne M. Hobbs, Case: 24STCV02775, Date: 2024-12-19 Tentative Ruling

Case Number: 24STCV02775    Hearing Date: December 19, 2024    Dept: 61

KEEP AMERICA SAFE AND BEAUTIFUL, IN THE PUBLIC INTEREST vs VITAL PLAN, INC., et al.

TENTATIVE

Plaintiff Keep America Safe and Beautiful’s Motion for Entry of Stipulated Consent Judgment is GRANTED.

Moving party to provide notice.

DISCUSSION

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.

Thursday, December 19, 2024

(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 Keep America Safe and Beautiful (Plaintiff) seeks court approval of a stipulated judgment with Defendants Vital Pan, Inc. and Amazon.com services, LLC (Defendants), with the following terms. Defendant Vital Plan, Inc. is to make a $5,000 penalty payment, 75% of which ($3,750.00) is to e-paid to the California Office of Environmental Health Hazards Assessment, with the remainder to be given to Plaintiff. (Proposed Judgment § 4.) Vital Plan is also to pay Plaintiff’s attorney fees in the amount of $40,000.00. (Proposed Judgment § 5.) Vital Plan also agrees to place warnings on the subject product (Pure Chlorella UPC) in compliance with 27 CCR § 25603. (Proposed Judgment § 3.)

Plaintiff argues that the $5,000 civil penalty is justified by the the relatively low level of lead in the subject product, and the absence of any evidence of malice or knowing wrongdoing on the part of Defendants. (Motion at pp. 8–9.) Plaintiff also argues that the attorney fees are reasonable, because Plaintiff’s counsel spent 81 hours of attorney work on this litigation, which given the $40,000 fee payment amounts to an average hourly rate of roughly $493.83. {Krikorian Decl. ¶ 6.)

From the above, Plaintiff has shown that the proposed settlement includes a reasonable penalty and a reasonable amount of attorney fees. The proposed judgment includes injunctive relief relating to warnings and lead content in the subject product in compliance with 27 CCR § 25603.

The motion is therefore GRANTED.