Judge: Monica Bachner, Case: 22STCV33927, Date: 2023-03-03 Tentative Ruling

Case Number: 22STCV33927    Hearing Date: March 3, 2023    Dept: 71

Superior Court of California

County of Los Angeles

DEPARTMENT 71

TENTATIVE RULING

Plaintiff Alex Martinez’s motion to approve and enter consent judgment is granted.

Plaintiff Alex Martinez (“Martinez”) (“Plaintiff”) moves for an order approving and entering the [Proposed] Consent Judgment between Plaintiff and Defendant YYBA Corp d/b/a Wellspring Meds (“Wellspring”) (“Defendant”) in the instant Proposition 65 action pursuant to Health & Safety Code §§25249.5, et seq.  (Notice of Motion, pg. 2.)  Plaintiff seeks the Court’s approval of the settlement reached in an action involving alleged violations of Proposition 65 by Defendant with respect to “WELMATE Urinary Pain Relief” (“Covered Product”) sold by Defendant that allegedly exposes consumers to Phenazopyridine Hydrochloride, a carcinogen, at levels exceeding the applicable No Significant Risk Level (“NSRL”) without clear and reasonable Proposition 65 warnings.  (Motion, pg. 3; [Proposed] Consent Judgment §§1.2, 1.5.) 

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.” 

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.

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 Phenazopyridine Hydrochloride is a known carcinogen as identified and listed by the California Environmental Protection Agency’s Office of Environmental Health Hazard Assessment (“OEHHA”) on January 1, 1988, under Proposition 65 as a carcinogen.  (Complaint ¶5; Motion, pg. 4; see 27 CCR §25902; see also [Proposed] Consent Judgment §1.2.)  Plaintiff submitted evidence he retained an expert witness, an experienced obstetrician-gynecologist, to provide an analysis of the Covered Product.  (Decl. of Cole ¶6.)  Plaintiff asserts that its expert provided information that the Covered Product contained Phenazopyridine Hydrochloride at levels exceeding the applicable NSRL of 5 micrograms per day.  (Motion, pg. 3; Exh. C; 27 CCR §25705(d)(3); see Decl. of Cole ¶6.) 

The [Proposed] Consent Judgment provides that, as of the “Effective Date” (the date Plaintiff serves the Notice of Entry of the Consent Judgment), Defendant will manufacture, import, or purchase for sale in California only Covered Products that provide a Proposition 65 compliant warning that reads, “WARNING: This product can expose you to Phenazopyridine Hydrochloride, which is known to the State of California to cause cancer. For more information, go to https://www.p65warnings.ca.gov/,” in a type size no smaller than the largest type size used for other consumer information on the Product and larger than six (6) point type, including a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline shall be placed to the left of the text of the Warning, in a size no smaller than the height of the word “WARNING,” and where the label for the product is not printed using the color yellow, the symbol may be in black and white. ([Proposed] Consent Judgment §3.1.)  For any Product sold over the Internet, the Warning shall be prominently displayed as follows: (a) on the primary display page for the Product; (b) as a clearly marked hyperlink using the word “WARNING” in all capital and bold letters on the Product’s primary display page; so long as the hyperlink goes directly to a page prominently displaying the Warning without content that detracts from the Warning; (c) on the checkout page or any other page in the checkout process when a California delivery address is indicated for any purchase of any Product and with the Warning clearly associated with the Product to indicate that the product is subject to the Warning; or (d) by otherwise prominently displaying the Warning to the purchaser prior to completing the purchase.  ([Proposed] Consent Judgment §3.1.1.)

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 $60,000 to KJC Law Group, A.P.C., attorneys of record for Plaintiff, as complete reimbursement for Plaintiff’s attorneys’ fees and costs incurred as a result of investigating, bringing this matter to Defendant’s attention, litigating, negotiating, and obtaining judicial approval of a settlement in the public interest.  ([Proposed] Consent Judgment §4.1.)  The Court finds the amount of attorneys’ fees and costs is reasonable and supported.  (Decl. of Cole ¶¶7-8; see 11 CCR §3201.)  Plaintiff submitted a fees and costs summary demonstrating that Kevin J. Cole billed at an hourly rate of $500 per hour and Robert Tauler billed at an hourly rate of $750.  (Decl. of Cole ¶¶3-4.)  Plaintiff’s counsel declares Kevin J. Cole spent a total of 42.4 hours on this matter for a total of $21,200 in attorneys’ fees, and Robert Tauler spent a total of 62 hours on this case, for a total of $46,500 in attorneys’ fees.  (Decl. of Cole ¶¶3, 7.)  The combined total of counsels’ hours, $67,700, exceeds the proposed $60,000 in attorney’s fees, which parties have agrees is a fair amount for attorneys’ fees in the instant case.  (Decl. of Cole ¶8; [Proposed] Consent Judgment §4.1.)

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 $15,000.00, 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 §4.1.)  Defendant agreed to issue two checks made payable to OEHHA in the amount of $11,250, representing 75% of the total civil penalty, and issue a second check to “KJC Law Group in Trust for Martinez” in the amount of $3,750.00, representing 25% of the total civil penalty.  ([Proposed] Consent Judgment §4.1; 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 civil penalty amount is reasonable as a sufficient deterrent against future violations by Defendant and other companies in the industry.  (Motion, pg. 5.)

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

Dated:  March _____, 2023

Hon. Monica Bachner

Judge of the Superior Court