Judge Robert C. Longstreth, Case 37-2021-00000421-CU-MC-CTL 2024-02-23 Tentative Ruling

Judge: Robert C. Longstreth, Case: 37-2021-00000421-CU-MC-CTL, Date: 2024-02-23 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - February 22, 2024

02/23/2024 08:30:00 AM C-65 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Robert Longstreth

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Civil - Unlimited Misc Complaints - Other Motion Hearing (Civil) 37-2021-00000421-CU-MC-CTL VAN PATTEN VS URBAN OUTFITTERS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Attorney Fees, 10/27/2023

Plaintiff's Motion for Attorney Fees (ROA 85) is CONTINUED to March 15, 2024 at 8:30 a.m. to allow time for Defendant to submit a sur-reply.

This is an action brought under the Safe Drinking Water and Toxic Enforcement Act. Court approval of a settlement is required under the Act, including a finding that '[t]he award of attorney's fees is reasonable under California law.' (Health & Saf. Code § 25249.7(f)(4)(B).) Here, the court approved the parties' settlement on August 25, 2023 and a consent judgment was entered on August 28, 2023. (ROA 78, 80.) The parties agreed that Plaintiff's right to attorney fees and costs, if any, would be determined by the court via a separate motion. (Judgment at § 3.2.) Plaintiff seeks an award of attorney fees pursuant to Code of Civil Procedure section 1021.5, the private attorney general statute. The statute provides that 'a court may award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.' (Code Civ. Proc. § 1021.5.) Defendant asserts Plaintiff is not entitled to an award of attorney fees under section 1021.5 because Plaintiff did not obtain a significant public benefit by way of the settlement.

This is a failure to warn action pertaining to exposure to the chemical Diethylhexylphalate ('DEHP') by a product sold by Defendant, the Shaye Clear Festival Bag. (Compl. ¶ 1.) Per the consent judgment, Defendant has ceased sales of the product in California and agrees not to sell the product in California.

(Judgment at § 2.) If Defendant chooses to sell the product in California after entry of judgment, Defendant will either reformulate the product or add a warning. (Id. at § 2.1.) Any reformulated product must contain no more than 1,000 parts per million (0.1%) DEHP. (Id. at § 2.2.) If the product is not reformulated and Defendant sells the product in California, Defendant will place an agreed-upon warning label on the product. (Id. at § 2.3.) If the product is sold online to California consumers, Defendant will also provide the warnings online. (Id. at § 2.4.) Defendant is also required to pay a civil penalty of $5,000.00. (Id. at § 3.1.) Regulations provide detailed guidance regarding what constitutes a 'public benefit' under section 1021.5 in actions filed under the Act. Per the regulations, Plaintiff is entitled to a presumption of a significant Calendar No.: Event ID: TENTATIVE RULINGS

3042020 1 CASE NUMBER: CASE TITLE: VAN PATTEN VS URBAN OUTFITTERS INC [IMAGED] 37-2021-00000421-CU-MC-CTL public benefit for 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.' (11 Cal. Code Regs. § 3201(b)(1).) Here, the settlement provides for the giving of a warning if Defendant resumes sale of the product. (Judgment at §§ 2.3-2.4.) Defendant admits in its discovery responses that no warning was provided prior to the 60-day notice. (Ledger Decl. at Exh. D, 11:2-12.) DEHP exposure is an exposure that requires a warning in the state of California. (Health & Saf. Code § 25249.6; 27 Cal. Code Regs. § 27001(b).) Similarly, Plaintiff is entitled to a presumption of a significant public benefit in light of the agreement to reformulate the product. (11 Cal. Code Regs. § 3201(b)(2).) Plaintiff also cites subdivision (3) of the regulation in his reply, asserting that because the judgment requires Defendant to cease sales of the product, discharge of DEHP has been eliminated and thus a significant benefit is established. (Id. at § 3201(b)(3).) Defendant asserts Plaintiff has not provided any admissible evidence to demonstrate a significant public benefit has been obtained. Although Defendant claims Plaintiff is required to submit admissible evidence to prove 'an exposure for which a warning plausibly is required,' Plaintiff was necessarily required to, and did, submit a Certificate of Merit to the California Attorney General's Office before filing this lawsuit. (Health & Saf. Code § 25249.7(d)(1); Rikos Decl. ¶ 3.) Plaintiff's counsel's declaration states the Certificate of Merit package 'included not only a content test but also a toxicology analysis demonstrating the product at issue was in violation of the Safe Harbor levels established by the [California Office of Environmental Health Hazard Assessment].' (Rikos Decl. ¶ 3.) In response to Defendant's assertion that Plaintiff's counsel's declaration was not sufficient to establish a presumption in Plaintiff's favor, Plaintiff's counsel submitted a supplemental declaration with his reply papers. A copy of the Certificate of Merit package, including test results, was provided with the supplemental declaration. (Rikos Supp. Decl. at Exh. E.) The test results are 'evidence of an exposure for which a warning plausibly is required.' (11 Cal. Code Regs. § 3201(b)(1).) The test results are also evidence that 'at least some of the products in controversy in the action either are, or at some time relevant to the litigation were, above the agreed-upon reformulation standard or formula.' (Id. at § 3201(b)(2).) While the court believes that Plaintiff may well be entitled to a presumption that a significant public benefit was obtained apart from the supplemental evidence submitted on reply, the court exercises its discretion to admit the supplemental evidence and permit Defendant additional time to address it. (11 Cal. Code Regs. § 3201(b).) The court will continue the hearing on this motion to allow Defendant to submit a sur-reply. The sur-reply is limited to a response to the reply evidence only, is limited to five (5) pages, and is due on or before March 6, 2024. No further briefing is permitted.

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