Judge: Maurice A. Leiter, Case: 23STCV30344, Date: 2024-04-03 Tentative Ruling

Case Number: 23STCV30344    Hearing Date: April 3, 2024    Dept: 54

Hearing Date: April 3, 2024

Department 54, Judge Maurice Leiter

MOTION FOR ENTRY OF STIPULATED CONSENT JUDGMENT

Moving Party: Plaintiff Keep America Safe and Beautiful  

Responding Party: None                 

T/R:     The motion is GRANTED.  Moving party is to give notice.

If the parties wish to submit on the tentative, please email the courtroom at¿SMCdept54@lacourt.org¿with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing. 

The Court considered the moving papers.  No opposition has been filed.  

BACKGROUND

On December 12, 2023, Plaintiff Keep America Safe and Beautiful sued Defendant Kabushiki Kaisha Muso Shoji for civil penalties and injunctive relief. Plaintiff alleges that Defendant violated Proposition 65 by failing to warn of exposure to cadmium in Kabushiki’s shiitake mushrooms, Premium "Donko" Thick Cap Estate Grown on Oak Log, which Kabushiki distributed and/or sold in California.

Plaintiff now moves, pursuant to California Health & Safety Code § 25249.7(f), for an order approving a Proposed Stipulated Consent Judgment.

ANALYSIS

Health & Safety Code § 24259.7(f) governs approval of settlements and consent judgments in private actions to enforce Proposition 65.  Section 24259.7(f)(4) provides, in relevant part:

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).

“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.)

1.    The Warning

A warning must be “clear” and “reasonable.”  (HSC § 25249.6.)  To comply, the manner of transmission must be reasonable and the message must be sufficiently clear to communicate the warning.  (Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 Cal.App.4th 60, 67 fn. 6.) 

The warning requirements in section 3.2 of the Proposed Consent Judgment are clear and reasonable. They communicate that the product can expose a consumer to chemicals including cadmium, which is known to the State of California to cause cancer and birth defects or other reproductive harm.  If Kabushiki is required to provide a warning pursuant to section 3.1, one of the following warnings must be utilized: (1) “WARNING: Consuming this product can expose you to chemicals including cadmium, which is [are] known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to ww.P65Warnings.ca.gov/food”; and (2) “WARNING: Cancer and Reproductive Harm - http://www.p65wamings.ca.gov/food.”  (Declaration of Tro Krikorian (“Krikorian Decl.”), ¶ 10; Exhibit C – a copy of the Stipulated Consent Judgment, Section 3.1-3.2.)  These warnings include the word “WARNING” in all capital and bold letters and direct the consumer to www.P65warnings.ca.gov for more information.  Pursuant to section 3.2, the warning will be affixed to the packaging of the product and will be prominently placed so that it likely will be read and understood by an ordinary individual. 

2.    Attorney’s Fees and Costs

The negotiated $40,000.00 reimbursement for fees and out-of-pocket litigation expenses is reasonable; it is less than the lodestar calculations.  (Krikorian Decl., ¶ 6.)   Plaintiff’s counsel have spent 85 hours on this matter, and expect to spend an additional three to four hours.  (Id.)  Counsel declares he and his staff bill at a rate of $450 to $550 per hour.  (Id. at ¶¶ 1-5.)

3.    Reasonableness of the Penalty

Health & Safety Code § 24259.7(b)(2) provides:

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.

The proposed penalty of $5,000 is reasonable.  (Krikorian Decl., ¶ 13; Exhibit C, Section 4.)  In November 2023, Plaintiff’s counsel began investigating whether the product contained excessive levels of cadmium.  (Id. at ¶ 2.)  In December 2022, Plaintiff confirmed, through third-party certified laboratory testing, that the product contained cadmium at levels actionable pursuant to California Health and Safety Code section 25249.9.  (Id. at ¶ 4.)  On February 3, 2023 counsel’s firm prepared and served a Notice of Violation of Health and Safety Code Section 25249.5, et seq. on Kabushiki.  (Id. at ¶ 5.)  On December 12, 2023, Plaintiff filed this action. (Id. at ¶ 8.)  The parties have cooperated throughout. 75 percent of the penalty will be paid to the Office of Environmental Health Hazard Assessment; the remaining 25 percent will be paid to Plaintiff.

4.    Public Interest

Under 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.”  The warning here does exactly that; it serves the public interest.