Judge: Malcolm Mackey, Case: 21STCV11856, Date: 2022-07-29 Tentative Ruling

Case Number: 21STCV11856    Hearing Date: July 29, 2022    Dept: 55

APS&EE, LLC. v. MICHAELS STORES, INC.                           21STCV11856

Hearing Date:  7/29/22,  Dept. 55

#7:   MOTION TO APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT JUDGMENT.

Notice:  Okay

No Opposition

MP:  Plaintiff

RP:  

Summary

On 3/29/21, Plaintiff filed a Complaint, alleging that this is a Proposition 65 action, in which Plaintiff seeks to protect the public from exposure to a highly toxic chemical—lead-- found in ceramic Cookie Jars distributed and sold by defendants.

MP Positions

Moving party requests an order approving a Proposition 65 Consent Judgment, on grounds including the following:

·         The Consent Judgment executed by the parties was entered into in good faith, is fair and reasonable, and is in the public interest.

·         Among other things, the Consent Judgment provides that as of the Effective Date, Defendants shall not distribute or cause to be distributed any Products to be sold in California unless (a) the Product contains no more than 1.0 microgram of lead based on a wipe sample collected using NIOSH Method 9100 from the part of the Product that contains the Exterior Decorations, or (b) the Product is accompanied by a clear and reasonable warning in a specified statement.

·         Defendants agreed to reimburse Plaintiff’s attorneys’ fees and costs in the amount of $32,000.00. In the course of investigating, litigating, and settling this case, over $42,000 was actually incurred by Plaintiff in attorney’s fees and costs, at the investigator rate of $200 per hour, and attorney rate of $550 per hour.  The sum of $4,000 in discovery sanctions previously was awarded by Court order.

Tentative Ruling

The motion is granted, as prayed.

In deciding whether to approve a consent judgment, under Proposition 65, judges must consider whether (1) the judgment serves the public interest including the specific benefit the public would reap, (2) there is justiciability based on an actual or threatened violation beyond mere speculative chance, (3) there was notice given to the Attorney General 60 days before commencing litigation that was specific enough as to the location and source of exposure to enable a meaningful review by the Attorney General, and (4) there is compliance with statutory requirements of (a) clear and reasonable warnings reasonably calculated considering the alternative methods available in the circumstances to make the warning message available to the individual prior to exposure, (b) reasonable attorneys’ fees, and (c) reasonable penalties.  Consumer Advocacy Group, Inc. v. Kintetsu Ent. of Amer. (2006) 141 Cal.App.4th 46, 65.  Approvals of consent judgments under Proposition 65 are deferentially reviewed for abuse of discretion, so long as the trial court adheres to correct legal criteria.  Ibid. at 61.