Judge Ronald F. Frank, Case Number: 23TRCV01962, Date: 2024-03-01 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV01962, Date: 2024-03-01 Tentative Ruling

Case Number: 23TRCV01962 Hearing Date: March 1, 2024 Dept: 8

Tentative Ruling

HEARING DATE: March 1, 2024¿

CASE NUMBER: 23TRCV01962

CASE NAME: Keep America Safe and Beautiful v. RPM Fitness, Inc., et al.

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MOVING PARTY: Plaintiff, Keep America Safe and Beautiful

RESPONDING PARTY: Defendants, RPM Fitness, Inc. (No Opposition)

TRIAL DATE: Not Set.

MOTION:¿ (1) Motion to Approve of Consent Judgment

Tentative Rulings: (1) GRANTED.

I. BACKGROUND¿

A. Factual¿

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On June 16, 2023, Plaintiff, Keep America Safe and Beautiful (“Plaintiff”) filed a Complaint against Defendant, RPM Fitness, Inc., and DOES 1 through 10. The Complaint alleged one cause of action for Violation of Proposition 65.

Plaintiff now moves for a Motion to Approve Consent Judgment.

B. Procedural

On January 16, 2024, Plaintiff filed this Motion to Approve Consent Judgment. To date, no opposition has been filed.

II. ANALYSIS ¿

A. Legal Standard

The Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65, was passed as a ballot initiative by the California voters, and was designed to prevent the contamination of drinking water with, and generally protect the public from unknowing exposure to, harmful chemicals. (See generally 12 Witkin, Summary of California Law 10th (2005) Real Property, § 894, p. 1075.) Proposition 65 has both public and private enforcement mechanisms. (See Health & Saf. Code, § 25249.7 subds. (c), (d).) Violations are punishable by injunction and civil penalty. (Health & Saf. Code § 25249.7, subds. (a), (b).) In private enforcement actions, parties may also recover attorney’s fees, pursuant to the provisions in Code of Civil Procedure section 1021.5.

A court may approve a settlement in a Proposition 65 action only if the court makes all of the following findings: (1) the warning that is required by the settlement complies with Proposition 65’s requirements as set forth in section 25249.6; (2) the award of attorney’s fees is reasonable under California law; (3) the penalty amount is reasonable based on the criteria set forth in section 25249.7, subdivision (b)(2). (Health & Saf. Code section 25249.7, subd. (f)(4).) “To stamp a consent agreement with the judicial imprimatur, the court must determine the proposed settlement is just. . . . In the context of Proposition 65 litigation, necessarily brought to vindicate the public interest, the trial court also must ensure that its judgment serves the public interest.” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 61.)

B. Discussion

Compliancy of Warning

Health & Safety Code section 25249.6 states, in relevant part: “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 & Saf. Code, § 25249.6.) For a warning to be clear and reasonable, the manner of transmission must be reasonable, and the message employed must be sufficiently clear to communicate the warning. (Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 Cal.App.4th 60, 67, fn. 6.)

Here, Plaintiff has submitted a copy of the proposed consent judgment. (Declaration of Joseph R. Manning (“Manning Decl.”), ¶ 10, Exhibit B.) Pursuant to the Consent Judgment, after 90 days following the effective date, Defendant agrees that it is permanently enjoined from manufacturing for sale in the State of California, “Distributing into the State of California,” or directly selling in the State of California, any non-compliant Covered Product unless it meets the warning requirements of Section 3.2. Defendant further agrees to provide a warning on all of the Defendant’s “Core Mats”, all with mats containing DEHP, a listed chemical under Proposition 65 that is known to cause cancer, birth defects and other reproductive harm. For all Core Mats (“Covered Products”), packaged, distributed, shipped, or sold by Defendant prior to the compliance date, all such covered products are released under the consent judgment. However, for all Covered Products manufactured, distributed, marketed, sold, or shipped for sale to consumers by Defendant in the State of California, after the Compliance Date, Defendant has required that it must meet the warning requirement under proposition 6 as to these Covered Products. The warning language will state: “WARNING: This product can expose you to Di(2-ethylhexyl) phthalate (DEHP), which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov”; or “WARNING: Cancer and Reproductive Harm – www.P65Warnings.ca.gov.” The warning will include a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. If the labeling does not use the color yellow, the symbol may be in black and white. The symbol shall be placed to the left of the text of the warning, in at least 6-point type, and no smaller than the largest typed size used for other consumer information on the products. This satisfies the warning requirement set forth in Health and Safety Code section 25249.6.

The Court finds the warning proposed by the settlement is clear and reasonable and complies with the Health and Safety Code.

Reasonableness of Attorneys Fees

The fees setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, to fix the fee at the fair market value of the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) After the court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

Pursuant to Consent Judgment, Section 4.3, Defendant has agreed to pay attorneys fees in the amount of $20,250 to Plaintiff and its counsel of record for all fees and costs incurred in investigating, etc.. This is less the $36,537.85 Plaintiff’s counsel has claimed the three attorneys listed in his declaration accrued over the course of the litigation and settlement at counsels’ rates of $550 or $600 hourly rate. (Manning Decl., ¶¶ 14-21.) Plaintiff’s counsel also notes that multipliers have ranged from 1.25 to 1.75 in similar cases, but notes that while they believe a multiplier would be appropriate, they are not seeking one in this case.

This court finds that the amount of $20,250 represents reasonable attorneys fees for the work performed as set forth in the detailed summary of actions undertaken in investigation, litigating, and settling this action. Based on this, the Court finds that the amount of attorney fees and costs provided to Plaintiff in the settlement is reasonable.

Reasonableness of Civil Penalty

The civil penalty is not to exceed $2,500 per day for each violation. (Health & Saf. Code § 25249.7, subd. (b)(1).) In assessing the amount of a civil penalty, the court must consider (1) the nature and extent of the violation, (2) the number and severity of the violations, (3) the economic effect of the penalty on the violator, (4) whether and when the violator took good faith measure to comply with regulations, (5) the willfulness of the violator’s misconduct, (6) the deterrent effect on the violator and the regulated community as a whole, and (7) “[a]ny other factor that justice may require.” (Health & Saf. Code § 25249.7, subd. (b)(2).)

Here, Defendant has agreed to pay $2,250 to be allocated according to Health & Safety Code §§ 25249.12(c)(1) & (d), with seventy-five percent (75%) of the Penalty amount earmarked for the State of California’s Office of Environmental Health Hazard Assessment (“OEHHA”), and the remaining twenty-five (25%) of the Penalty amount earmarked for Plaintiff’s portion of the Penalty.

The Court finds the civil penalty of $2,250 to be reasonable. This release is specifically limited to Defendant’s Covered Products and claims presented in this lawsuit. The scope of this release is thus proper.

Release Provisions

Plaintiff purports to release all claims arising from actual or alleged violations of Proposition 65 regarding the Covered Products through the effective date. The release states that Plaintiff is releasing said claims on behalf of itself and its respective officers, directors, principals, shareholders, employees, agents, attorneys, accountants, insurers, parent companies, subsidiaries, divisions, and affiliates and on behalf of the public interest. This is appropriate as the release does not purport to release claims on behalf of the public. Thus, the release provision is permissible.

III. CONCLUSION¿

Based on the foregoing, Plaintiff’s Motion for Approval of Consent Judgment is GRANTED.

Plaintiff is ordered to give notice.