Judge Randolph M. Hammock, Case 20STCV18693 2022-12-14 Tentative Ruling

Judge: Randolph M. Hammock, Case: 20STCV18693, Date: 2022-12-14 Tentative Ruling

Plaintiff Consumer Advocacy Group, Inc., filed this action against retailer Defendant Ross Stores, Inc., under the Safe Drinking Water and Toxic Enforcement Act of 1986 (“Proposition 65”). Plaintiff alleged various products sold at Defendant’s stores contained Di(2-ethylhexyl) phthalate (“DEHP”) and/or Diisononyl Phthalate (“DINP”), both of which are subject to Proposition 65 warning requirements. Defendant allegedly failed to provide such warnings. On October 22, 2021, Defendant Enchante Accessories, Inc., the distributor of the products at issue, filed a motion to intervene. The court granted the motion.

On November 1, 2022, the court denied Defendant Enchante Accessories, Inc.’s motion to bifurcate the trial, without prejudice. Defendant now moves for a second time to bifurcate the trial into three phases. Plaintiff Consumer Advocacy Group, Inc., opposed.

“The court may, when the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby, on motion of a party, after notice and hearing, make an order . . . that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case . . . .” (Code Civ. Proc., § 598.) “The court, in furtherance of convenience or to avoid prejudice, or when separate trials will be conducive to expedition and economy, may order a separate trial of any cause of action, including a cause of action asserted in a cross-complaint, or of any separate issue or of any number of causes of action or issues . . . .” (Id., § 1048, subd. (b).) “It is within the discretion of the court to bifurcate issues or order separate trials of actions . . . and to determine the order in which those issues are to be decided.” (Royal Surplus Lines Ins. Co. v. Ranger Ins. Co. (2002) 100 Cal.App.4th 193, 205.)

When denying Defendant’s previous motion to bifurcate, this court found “there [was] no justification to order bifurcation of the trial at [that] stage,” and ordered that “all corresponding discovery deadlines and obligations” proceed as scheduled. (See Final Ruling, 11/1/22.) Defendant now moves to bifurcate for a second time. The proposed trial sequence appears identical to that proposed by Defendant in the last motion, namely:

Phase 1 will address Defendants’ statutory affirmative defense: (1) the exposure to DEHP was below the statutory safe harbor level so that no warning is required, and/or (2) DEHP is not a human carcinogen so cancer warnings are not appropriate;

In Phase 2, Plaintiff must establish that Defendants Ross and Enchante “knowingly and intentionally” exposed consumers to DEHP, with Defendants given the option to assert other affirmative defenses; and

Under this proposed format, Defendant contends that it can present “solid evidence” during Phase 1 that the DEHP exposure fell below the safe harbor levels—thus, no Prop 65 warnings are required. (See Health and Safety Code § 25249.10(c) [providing exemption for exposure falling below certain threshold].) If that happens, Defendant will defeat the claim in its entirety, “thereby minimizing the burden on the Court and the parties by avoiding the time and resources necessary to litigate Plaintiff’s burden or Defendants’ other defenses.” (Mtn. p. 1.) Defendant also seeks to stay all discovery not having to do with “exposure” until after Phase 1.

Defendant now provides evidence not presented in its first motion that it argues shows a high probability that it will prevail during the proposed Phase 1. Specifically, Plaintiff intends to produce the following evidence or expert testimony:

(1) Expert testimony concerning the toxicology of DEHP and studies that formed the bases of its listing as both a reproductive toxicant and a carcinogen, including why DEHP is not a human carcinogen and is exempt from warnings, as the Baxter court has so ruled.

Defendant has retained expert Michael Easter, a Certified Hazardous Material Manager on Steptoe & Johnson, LLP’s technical staff, to perform an initial screening of DEHP exposure in the cosmetic bag. In this screening assessment, Mr. Easter calculated the total DEHP exposure to be 8.71 micrograms per day—or less than 3% of the safe harbor for “no significant risk” of cancer. [FN 1] (See Adams Decl., Exhs. A&B; See also 27 CCR §25705(b).) Defendant also contends that Plaintiff’s only evidence purporting to show higher levels of DEHP was an evaluation done in a lab that “used testing methods not approved for measuring Phthalates” and “is not a Consumer Product Safety Commission-Accepted testing lab.”

Plaintiff again opposes the motion to bifurcate. First, Plaintiff contends that Defendant has focused only on the carcinogenic nature of DEHP, but has forgotten the Complaint’s allegations that DEHP also causes reproductive toxicity. “Thus, Defendant still has to has to meet its burden that it would prevail on its safe harbor defense as to reproductive toxicity.” (Opp. 3: 23-24.) Plaintiff also disputes that Mr. Easter is a “qualified expert,” and also contends that his use of the “MM Method”—as opposed to a “wipe test”—gives unreliable results.

Like it did in the last motion, Plaintiff also argues bifurcation will result in unfair prejudice. Namely, bifurcation and the resulting stay on discovery will preclude Defendant from obtaining discovery on its prima facie case, in particular, the knowledge and intent requirement. Plaintiff contends this result will preclude meaningful settlement discussions. Plaintiff also argues there will be substantial overlap in damages and liability for each proposed phase, and that if Defendant is not successful in Phase 1, it will result in the delay of injunctive and penal relief until Phase 3—all the while, the public will continue to be exposed to DEHP.

Here, having considered the arguments previously made together with Defendant’s new evidence, the court again finds that bifurcation is inappropriate at this juncture. Although Defendant’s single expert witness appears to be credible on its face—and additionally appears more viable than any evidence presented by Plaintiff in opposition to the motion—it is far from overwhelming evidence that Defendant will prevail on all relevant issues during the proposed phase 1. For that reason, Defendant has not established that bifurcation will expedite the trial or conserve judicial resources in any meaningful way. The court agrees with Plaintiff that precluding discovery at this stage is unwarranted and could prejudice Plaintiff’s ability to gather information to which it is reasonably entitled.

Judge of the Superior Court

FN 1 - Defendant contends that the assessment over-estimated the potential exposure, if anything. Mr. Easter used the assumption that the average user of the cosmetic bag held or handled it for one hour per day—an estimate presumably higher than reality.

Any party may submit on the tentative ruling by contacting the courtroom via email atSmcdept49@lacourt.org by no later than 4:00 p.m. the day before the hearing. All interested parties must be copied on the email. It should be noted that if you submit on a tentative ruling the court will still conduct a hearing if any party appears. By submitting on the tentative you have, in essence, waived your right to be present at the hearing, and you should be aware that the court may not adopt the tentative, and may issue an order which modifies the tentative ruling in whole or in part.