Judge: Monica Bachner, Case: 21STCV21484, Date: 2023-04-10 Tentative Ruling

Department 71: Attorneys who elect to submit on these published tentative rulings, without making an appearance at the hearing, may so notify the Court by communicating this to the Department's staff at (213) 830-0771 before the set hearing time.  See, e.g., CRC Rule 324(b).   All parties are otherwise encouraged to appear by Court Call for all matters.

Case Number: 21STCV21484    Hearing Date: April 10, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Public Health and Safety Advocates, LLC’s unopposed motion to approve and enter consent judgment is granted.

Plaintiff Public Health and Safety Advocates, LLC (“PHSA”) (“Plaintiff”) moves unopposed for an order approving and entering the [Proposed] Consent Judgment between Plaintiff and Defendant H & T Seafood, Inc. (“H & T”) (“Defendant”) in the instant Proposition 65 action pursuant to Health & Safety Code §§25249.6, et seq.  (Notice of Motion, pg. 2; Health & Safety Code §25249.7(f)(4); C.C.P. §664.6.)  Plaintiff seeks the Court’s approval of the settlement reached in an action involving alleged violations of Proposition 65 by Defendant regarding Defendant importing, selling, and/or distributing for sale in California the following products (“Products”) alleged to contain and expose consumers and other individuals to lead and cadmium: (1) Double Blue Whole Round Squid, UPC# 858838005960; (2) Double Blue Loligo Squid, UPC #8106988541590; (3) Double Blue Short-Necked Clam Meat, UPC #810698541842; (4) Double Blue Shellfish Cooked Clam, UPC #810698546700; (5) Double Blue Frozen Cooked Mussel Meat, UPC #810698546564; (6) Double Blue Loligo Squid Tentacles, UPC #810698561093; (7) Pineapple Frozen Cooked Apple Snail Meat, UPC #6 l 0698540821; (8) Pineapple Periwinkle Meat, UPC #810698542504; (9) Frozen Cooked Baby Clam Meat, UPC #810698547660; (10) Pineapple Frozen Whole Clam Steamed, UPC #810698548250; (11) Pineapple Frozen Whole Cleaned Cuttlefish, UPC #810696361017; and (12) Pineapple Frozen Tiny Shrimp, UPC #810698561284.  (Motion, pg. 2; [Proposed] Consent Judgment §§1.5, 1.6.) 

Health & Safety Code §25249.6 provides, as follows: “No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” 

“Reformulation of a product, . . . or other changes in the defendant’s practices that reduce or eliminate the exposure to a listed chemical, in lieu of the provision of a warning, are presumed to confer a significant benefit on the public.” (11 CCR § 3201(b)(2).)

Health & Safety Code §25249.7(a) provides, as follows: “A person who violates or threatens to violate Section 25249.5 or 25249.6 may be enjoined in any court of competent jurisdiction.” 
         

“A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.”  (Health & Safety Code §25249.7(b)(1).)

“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.”  (Health & Safety Code §25249.7(b)(2).)

Actions pursuant to Health & Safety Code §25249.7 may be brought by a person in the public interest if both of the following requirements are met:

(1)  The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator. If the notice alleges a violation of Section 25249.6, the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney. The certificate of merit shall state that the person executing the certificate has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action. Factual information sufficient to establish the basis of the certificate of merit, including the information identified in paragraph (2) of subdivision (h), shall be attached to the certificate of merit that is served on the Attorney General.

(2)  Neither the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation.

(Health & Safety Code §25249.7(d).)

“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).” (Health & Safety Code §25249.7(f)(4).)

“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(f)(5).)   Plaintiff provided proof that the motion and supporting papers were served on the Attorney General.  (Decl. of Kawahito ¶29.)

11 CCR §3203 (Reasonable Civil Penalty) provides, as follows:

The reasonableness of civil penalties in a settlement will be evaluated based on the factors set forth in the Health and Safety Code section 25249.7(b)(2). The following factors are “[other factors] that justice may require” to be considered within the meaning of Health and Safety Code section 25249.7(b)(2)(G):

(a)  A settlement with little or no penalty may be entirely appropriate or not, based on the facts or circumstances of a particular case.

(b)  Recovery of civil penalties (75% of which must be provided to the Office of Environmental Health Hazard Assessment) serves the purpose and intent of Proposition 65. Accordingly, civil penalties shall not be “traded” for payments of attorney’s fees.

(c)  Where a settlement provides that certain civil penalties are assessed, but may be waived in exchange for certain conduct by the defendant, such as, for example, reformulating products to reduce or eliminate the listed chemical, the conduct must be related to the purposes of the litigation, provide environmental and public health benefits within California, and provide a clear mechanism for verification that the qualifying conditions have been satisfied.

(d)  Where a settlement requires the alleged violator to make any Additional Settlement Payments to the plaintiff or to a third party, such Additional Settlement Payments are viewed as an “offset” to the civil penalty. The plaintiff must demonstrate to the satisfaction of the court that it is in the public interest to offset the civil penalty required by statute.

Plaintiff submitted evidence showing the [Proposed] Consent Judgment complies with Health & Safety Code §25249.7(f)(4)(A).  Plaintiff submitted evidence that, pursuant to the [Proposed] Consent Judgment, Defendant shall only manufacture for sale in California “Reformulated Products” or Products that are sold with a clear and reasonable warning, and the proposed warning mirrors the safe harbor warning in Proposition 65 implementing regulations and is therefore categorically clear and reasonable.  (Motion, pgs. 4-5; Decl. of Kawahito ¶4; [Proposed] Consent Judgment §2.1, §§2.3-2.6; see 27 CCR §25607.2.)  Should Defendant choose, in lieu of posting a warning on Products instead produce Reformulated Products, such Products are defined in §2.1 as Products for which the Daily Serving contains no more than 0.5 micrograms of lead or 4.1 micrograms of cadmium. The level of lead and cadmium established by the [Proposed] Consent Judgment for Reformulated products complies with the maximum allowable dose level for lead and cadmium as established by the California Office of Environmental Health Hazard Assessment (“OEHHA”).  (27 CCR §25805.)  Accordingly, Plaintiff’s proposed warning and alternative production/sale of Reformulated Products in lieu of a warning comply with Proposition 65.

Plaintiff also submitted evidence showing the [Proposed] Consent Judgment complies with Health & Safety Code §25249.7(f)(4)(B).  The [Proposed] Consent Judgment provides that Defendant will pay Plaintiff $36,000.00 in attorneys’ fees and costs.  (Decl. of Kawahito ¶¶8-10, 27-28; [Proposed] Consent Judgment §4.)  The Court finds the amount of attorneys’ fees and costs is reasonable and supported.  (Decl. of Kawahito ¶¶8-10, 27-28; see 11 CCR §3201.)  Plaintiff submitted a fees and costs summary demonstrating that Counsel James Kawahito billed at an hourly rate of $800.00 and paralegal Sebastian Burnside billed at a rate of $200.00.  (Decl. of Kawahito ¶27.)  Plaintiff’s counsel declares Plaintiff incurred a lodestar of $41,449.59, and the $36,000.00 settlement Plaintiff has agreed to is less than Plaintiff’s lodestar to date.  (Decl. of Kawahito ¶18.)

In addition, Plaintiff submitted evidence showing the [Proposed] Consent Judgment complies with Health & Safety Code §25249.7(f)(4)(C).  The Proposed Consent Judgment provides for a civil penalty of $4,000.00, to be apportioned in accordance with California Health & Safety Code §25192, with 75% of these funds remitted to OEHHA and the remaining 25% of the civil penalty remitted to Plaintiff, as provided by California Health & Safety Code §25249.12(d).  ([Proposed] Consent Judgment §3.1.)  Defendant agreed to issue two separate checks totaling $4,000.00, one made payable to the Kawahito Law Group in Trust for the State of California’s Office of Environmental Health Hazard Assessment (“in Trust for OEHHA”) in the amount of $3,000.00, representing 75% of the total civil penalty, and issue a second check to “Kawahito Law Group in Trust for PHSA” in the amount of $1,000.00, representing 25% of the total civil penalty.  ([Proposed] Consent Judgment §3.1; see 11 CCR 3203(b) [“Recovery of civil penalties (75% of which must be provided to the Office of Environmental Health Hazard Assessment) serves the purpose and intent of Proposition 65. Accordingly, civil penalties shall not be ‘traded’ for payments of attorney’s fees.”].) 

The Court finds the civil penalty amount and fee/cost recovery is reasonable based on Plaintiff’s compromise on the fees to be reimbursed, time and resources invested, and the public benefit achieved from obtaining Defendant’s commitment to reformulate the Products.  (Motion, pg. 8; Decl. of Kawahito ¶¶16-18.)

The ([Proposed] Consent Judgment provides that this Court shall enter the Consent Judgment as a judgment under C.C.P. §664.6.  ([Proposed] Consent Judgment §16; see ([Proposed] Consent Judgment §1.6.)

Based on the foregoing, Plaintiff’s unopposed motion to approve and enter consent judgment is granted.

  Dated:  April  6, 2023

Hon. Daniel P. Ramirez

Judge of the Superior Court