Judge: Salvatore Sirna, Case: 23PSCV03457, Date: 2025-01-16 Tentative Ruling

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Case Number: 23PSCV03457    Hearing Date: January 16, 2025    Dept: G

Plaintiff Clean Product Advocates LLC’s Motion Confirm Proposition 65 Settlement

Respondent: NO OPPOSITION

TENTATIVE RULING

Plaintiff Clean Product Advocates LLC’s Motion Confirm Proposition 65 Settlement is DENIED WITHOUT PREJUDICE.

BACKGROUND

This a Proposition 65 enforcement action. On November 7, 2023, Plaintiff Clean Product Advocates LLC (CPA) filed a complaint against Defendants OCM Globe, Inc. (OCM); Calco Farm, Inc. (Calco); and Does 1-100, alleging a single cause of action for violation of Proposition 65.

On December 20, 2023, CPA dismissed Calco from the present action.

On March 20, 2024, CPA filed a First Amended Complaint (FAC) against OCM and Does 1-100, alleging the same cause of action.

On April 22, 2024, OCM filed a cross-complaint against Roes 1-50, alleging causes of action for (1) comparative indemnity and apportionment of fault, (2) total equitable indemnity, and (3) declaratory relief.

On October 31, 2024, CPA filed the present motion. A hearing on the present motion is set for January 16, 2025, along with an OSC Re: Dismissal.

ANALYSIS

CPA moves for court approval of its proposed settlement with OCM. For the following reasons, the court DENIES WITHOUT PREJUDICE CPA’s motion.

Legal Standard

Proposition 65 prohibits “‘knowingly and intentionally expos[ing] any individual to a chemical known to the state to cause cancer’ without ‘first giving clear and reasonable warning’ to that individual.” (Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal.App.4th 1185, 1213.) Pursuant to Health and Safety Code section 25249.7, subdivision (d), a litigant may bring a private enforcement action to enforce Proposition 65. If a private enforcement action results in settlement, the settlement must be submitted to the court for approval through a noticed motion. (Health & Safety Code, § 25249.7, subd. (f)(4).) The court’s approval of the settlement requires “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[; and] (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).)

Discussion

Pursuant to the terms of the proposed settlement agreement, OCM is enjoined from manufacturing, distributing, or directly selling certain products that expose a person to more than 0.5 micrograms of lead per day unless they utilize certain warning labels. (Motion, Ex. A, § 3.1.) The covered products include Korean Style Vermicelli (UPC 854316006269), Sweet Potato Starch Noodles (UPC 141816200021), Artificial Hot & Sour Pork Flavor Soup (UPC 6921555541524), and Chinese Gourmet Hot & Sour Pork Bone (UPC 692155556279). (Motion, Ex. A, § 1.3.)

When warnings labels are required, OCM has agreed to utilize one of the two following warnings:

“OPTION 1:

WARNING: Consuming this product can expose you to chemicals including [lead] which is [are] known to the State of California to cause [cancer and] birth defects or other reproductive harm. For more information go to www.P65 Wamings.ca.gov/food.

OPTION 2:

WARNING: [Cancer and] Reproductive Harm — www.P65Warnings.ca.gov/food.” (Motion, Ex. A, § 3.2.)

The first option complies with the clear and reasonable requirement of Proposition 65. (Health & Safety Code, § 25249.6; Cal. Code Regs. tit. 27, § 25607.2, subd. (a)(5).) The second option does not, however, as it is not one of the approved short-form warnings listed in Title 27, section 25607.2, subdivision (b) of the California Code of Regulations. Thus, the court cannot make the finding that the proposed settlement requires the use code-compliant Proposition 65 warnings.

Accordingly, the court DENIES WITHOUT PREJUDICE CPA’s motion.

CONCLUSION

Based on the foregoing, CPA’s motion to confirm settlement is DENIED WITHOUT PREJUDICE.