Judge Robert B. Broadbelt, Case Number: 23STCV30517, Date: 2025-01-21 Tentative Ruling

Judge: Robert B. Broadbelt, Case: 23STCV30517, Date: 2025-01-21 Tentative Ruling

The court considered the moving papers filed in connection with this motion. No opposition papers were filed.

Plaintiff Clean Product Advocates LLC (“Plaintiff”) moves the court for an order approving and entering the proposed “Stipulated Consent Judgment” entered into by and between Plaintiff, on the one hand, and defendants MK Trading, erroneously sued as MK Trading Inc., and Zion Market, erroneously sued as Zion Market LLC (“Defendants”), on the other hand, pursuant to Health and Safety Code section 25249.7.

“If there is a settlement of an action brought by a person in the public interest under [section 25249.7] 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, subd. (f)(4).) The moving plaintiff “has the burden of producing evidence sufficient to sustain each required finding.” (Health & Safety Code, § 25249.7, subd. (f)(5).) The plaintiff also “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.” (Ibid.)

First, the court finds that Plaintiff has submitted a proof of service establishing service of (1) the pending motion and supporting documents on the Office of the Attorney General 45 days before the hearing on this motion, and (2) the notice of the continuance of the hearing on this motion on the Office of the Attorney General. (Mot., p. 28 [proof of service of moving and supporting papers]; Nov. 19, 2024 Proof of Service of Notice, p. 3 [proof of service of notice of continuance of hearing].) The court therefore finds that Plaintiff has complied with the service requirements. (Health & Safety Code, § 25249.7, subd. (f)(5); 11 CCR § 3003, subd. (a).) As of January 16, 2025, the Office of the Attorney General did not object to or comment further on the parties’ Stipulated Consent Judgment, but the court does not construe the absence of such an objection to be an endorsement or concurrence in the settlement. (11 CCR § 3003, subd. (a).)

Second, the court finds that Plaintiff has shown that the “Option 1” warning that is required by the Stipulated Consent Judgment complies with the Safe Drinking Water and Toxic Enforcement Act of 1986 (the “Act”). (Health & Safety Code, § 25249.7, subd. (f)(4)(A).)

“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, § 25249.6.) A warning is clear and reasonable within the meaning of the Act if (1) the name of one or more of the listed chemicals is included in the text of the warning, and (2) the warning is prominently displayed on a label, labeling, or sign, and displayed with such conspicuousness as compared with other words, statements, designs, or devices on the label, labelling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use. (27 CCR § 25601, subds. (a), (b), (c).)

Pursuant to the Stipulated Consent Judgment, Defendants have agreed that they shall be permanently enjoined from manufacturing for sale in California, distributing into California, or directly selling in California, any covered products that expose a person to a daily lead exposure level of more than 0.5 micrograms of lead per day, unless it meets the warning requirements provided in the judgment. (Mot., Ex. A, Stipulated Consent Judgment, ¶ 3.1.) For products that require a warning, the Stipulated Consent Judgment requires that Defendants use one of two proposed warnings, both of which “shall be securely affixed to or printed upon the label of each Covered Product and” “must be set off from other surrounding information and enclosed in a box. In addition, for any Covered Product sold over the internet, the Warning shall appear on the checkout page in full text or through a clearly marked hyperlink using the word ‘WARNING’ in all capital and bold letters when a California delivery address is indicated for any purchase of any Covered Product.” (Mot., Ex. A, Stipulated Consent Judgment, ¶ 3.2.)

The “Option 1” proposed warning (1) states the name of the listed chemicals for which the warning is being provided (i.e., lead), (2) is required to be prominently displayed at the same size as the largest of any other health or safety warnings also appearing on the website or label, and (3) is required to be displayed with such conspicuousness as compared with other words, statements, or designs on the label (or website, if applicable), as to render the warning to likely be read and understood by an ordinary individual under customary conditions of purchase or use of the product. (Mot., Ex. A, Stipulated Consent Judgment, ¶ 3.2 at pp. 4:15-17, 5:7-12, 5”16-19.) Thus, the court finds that Plaintiff has shown that “Option 1” of the proposed warning complies with the Act. (Health & Safety Code, § 25249.7, subd. (f)(4)(A); 27 CCR § 25601, subds. (b), (c).)

The court, however, finds that the “Option 2” warning does not comply with the Act because it does not require Defendants to state the name of the listed chemicals in the product for which the warning is being provided as required. (Health & Safety Code, § 25249.7, subd. (f)(4)(A); 27 CCR 25601, subd. (b) [“Except as otherwise specified in Section 25607 et seq., a warning meets the requirements of this subarticle if the name of one or more of the listed chemicals in the consumer product or affected area for which the warning is being provided is included in the text of the warning”]; Mot., Ex. A, Stipulated Consent Judgment, p. 4:19-21 [“Option 2” Warning: “WARNING: [Cancer and] Reproductive Harm – www.P65Warnings.ca.gov/food”].) The court therefore denies Plaintiff’s motion to approve Defendants’ use of the “Option 2” warning. (Ibid.)

Third, the court finds that the award of attorney’s fees is reasonable under California law. (Health & Safety Code, § 25249.7, subd. (f)(4)(B).)

“[T]he fee setting inquiry in California ordinarily begins with the ‘lodestar,’ i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. . . . .¿ The reasonable hourly rate is that prevailing in the community for similar work.¿ The lodestar figure may then be adjusted, based on consideration of factors specific to the case, in order to fix the fee at the fair market value for the legal services provided.”¿ (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095 [internal citations omitted]; Reck v. FCA US LLC (2021) 64 Cal.App.5th 682, 691 [“To determine a reasonable attorney fee award, the trial court applies the lodestar method”].)

Defendants have agreed to pay reasonable costs and fees to Plaintiff in the amount of $13,000. (Ex. A, Stipulated Consent Judgment, ¶ 4.3.) Plaintiff has submitted the declaration of its attorneys, in which they have attested to their education, experience, and skill. (Shabatian Decl., ¶¶ 14-15; Silver Decl., ¶ 2.) The court finds that the hourly rates requested ($700 as to attorney Shabtian and $600 as to attorney Silver) are reasonable in light of counsel’s education, experience, and skill. (Ibid.) The court further finds that Plaintiff’s attorneys have shown that they reasonably expended a total of 21 hours in litigating this action. (Shabatian Decl., ¶ 16; Silver Decl., ¶ 3.)

Thus, the court finds that Plaintiff has established a lodestar amount of $13,600 ((10 hours x Shabatian’s $700 hourly rate) + (11 hours x Silver’s $600 hourly rate)), such that Plaintiff’s request for $11,955 in attorney’s fees is reasonable.[1] The court further finds that the declaration of counsel is sufficient to support their request for $1,045 in legal costs. (Silver Decl., ¶ 4.)

The court therefore finds that the award of attorney’s fees and costs in the amount of $13,000 is reasonable under California law.

Third, the court finds that the $2,000 penalty amount is reasonable based on the criteria set forth in Health and Safety Code section 25249.7, subdivision (b)(2).

The court has considered, in particular, that (1) Plaintiff’s investigation concluded that Defendants manufactured, imported, or distributed a product containing lead, (2) Defendants’ denial of such allegations, (3) Plaintiff’s counsel’s consideration of the factors provided in the Act and the circumstances in this action when determining the amount of the penalty, and (4) the arms-length negotiations between the parties that determined the amount of penalties to be imposed against Defendants. (Shabatian Decl., ¶¶ 4, 8, 10.) The court has also considered that 75 percent of the penalty ($1,500) will be paid to the Office of Environmental Health Hazard Assessment for deposit in the Safe Drinking Water and Toxic Enforcement Fund and the remaining 25 percent ($500) will be paid to Plaintiff. (Mot., Ex. A, Stipulated Consent Judgment, ¶ 4.2.)

Thus, the court finds that Plaintiff has met its burden to establish that the Stipulated Consent Judgment entered into by and between it and Defendants, with the exception of the provisions regarding “Option 2” of the proposed warnings, complies with the Act and is reasonable. (Health & Safety Code, § 25249.7, subds. (f)(4), (f)(5).) The court therefore grants Plaintiff’s motion in part.

The court grants in part plaintiff Clean Products Advocates LLC’s motion to confirm Proposition 65 settlement and proposed consent judgment as follows.

The court will sign and file the proposed “Stipulated Consent Judgment,” lodged with the court as Exhibit A to plaintiff Clean Products Advocates LLC’s motion to confirm Proposition 65 settlement and proposed consent judgment, as modified by the court to exclude the references to the “Option 2” warning.

The court orders that (1) the trial set on December 3, 2025, and the Final Status Conference set on November 21, 2025, are vacated.

The court orders plaintiff Clean Products Advocates LLC to give notice of this ruling.

[1] Attorney Silver has stated that his attorney’s fees are being reduced from $6,600 to $4,955 based on the total amount of the parties’ settlement. (Silver Decl., ¶ 3.)

clean product advocates llc ; Plaintiff, vs. mk trading inc. , et al.; Defendants.	Case No.:	23STCV30517

	Hearing Date:	January 21, 2025

	Time:	10:00 a.m.

	[tentative] Order RE: plaintiff’s motion to confirm proposition 65 settlement and consent judgment