Judge Stephen P. Pfahler, Case Number: 24STCV00027, Date: 2024-10-16 Tentative Ruling

Judge: Stephen P. Pfahler, Case: 24STCV00027, Date: 2024-10-16 Tentative Ruling

Case Number: 24STCV00027 Hearing Date: October 16, 2024 Dept: 68

Dept. 68

Date: 10-16-24

Case #: 24STCV00027

Trial Date: 4-1-25

SETTLEMENT & CONSENT JUDGMENT

MOVING PARTY: Plaintiff, APS&EE, LLC

RESPONDING PARTY: Unopposed/Defendants, Ross Stores, Inc.

RELIEF REQUESTED

Motion to Approve Settlement and Consent Judgment

SUMMARY OF ACTION

On January 2, 2024, Plaintiff APS&EE, LLC filed a complaint for violations of Health & Safety Code section 25249.6, et al. seeking injunctive relief and civil penalties. Plaintiff alleges a nonstick “Xylan” frying pan results in the release of Perfluorooctanoic Acid (PFOA), a known carcinogen and reproductive toxicity substance. Said pan was sold without proper warning on the label in compliance with Proposition 65. The product was sold by Ross Stores, Inc. Defendants answered the complaint on February 5, 2024.

RULING: Granted.

Plaintiff APS&EE, LLC moves to approve the settlement and consent judgment with defendant Ross Stores, Inc. This action arises from Health and Safety code section 25249.6: “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.) Violations are enforceable via public or private action. (Health & Saf. Code, § 25249.7, subd. (c-d).) A private prosecuting party may seek injunctive relief and penalties. (Health & Saf. Code, § 25249.7, subd. (a-b).)

Upon establishing the right to privately pursue the action, and in case of settlement, the plaintiff shall submit a report to the Attorney General and obtain court approval. (Health & Saf. Code, § 25249.7, subd. (d-f).)

(4) If there is a settlement of an action brought by a person in the public interest under 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.

(5) The plaintiff subject to paragraph (4) has the burden of producing evidence sufficient to sustain each required finding. The plaintiff 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.”

(Health & Saf. Code, § 25249.7, subd. (f)(4-5).)

The settlement provides for injunctive relief, warning requirements, payment of penalties and attorney fees. The terms briefly summarized:

Defendant will provide the following warning: “This product can expose you to Perfluorooctanoic Acid (“PFOA”) 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.”

Defendant shall pay a civil penalty of $4,00.00, with 75% of these fonds remitted to the State of California’s Office of Environmental Health Hazard Assessment and the remaining 25% of the penalty remitted to Plaintiff. ,

(2) In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following:

(A) The nature and extent of the violation.

(B) The number of, and severity of, the violations.

(D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken.

(E) The willfulness of the violator's misconduct.

(F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole.

(G) Any other factor that justice may require.

(Health & Saf. Code, § 25249.7, subd. (b)(2).)

The court finds the penalty reasonable under the criteria. [Declaration of Lucas Novak.]

Defendant agrees to payment of $28,000.00 for all attorneys' fees, expert and investigation fees and related costs associated with this matter and the Notice.

“Since the Legislature has mandated that the court must determine that the attorney's fees in all settlements of Private Proposition 65 actions must be ‘reasonable under California law,’ the fact that the defendant agreed to pay the fee does not automatically render the fee reasonable. The fact that the fee award is part of a settlement, however, may justify applying a somewhat less exacting review of each element of the fee claim than would be applied in a contested fee application.” (Cal. Code Regs., tit. 11, § 3201.)

(“1) In a case alleging failure to warn, 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, is presumed to confer a significant benefit on the public. If there is no evidence of an exposure for which a warning plausibly is required, there is no significant public benefit, even if a warning is given. If the relief consists of minor or technical changes in the language, appearance, or location of a warning in a manner that is not likely to significantly increase its visibility or effectiveness in communicating the warning to the exposed persons, there is no significant public benefit. Where a settlement sets forth a standard or formula for when a given product requires a warning, supporting evidence should show that at least some of the products in controversy in the action either are, or at some time were, above the warning level, or the existence of the standard or formula itself may not establish the existence of a significant public benefit.

(2) Reformulation of a product, changes in air emissions, or other changes in the defendant's practices that reduce or eliminate the exposure to a listed chemical, in lieu of the provision of a warning, are presumed to confer a significant benefit on the public. Where a settlement sets forth a standard or formula for reformulation, supporting evidence should show 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, or else the mere agreement to a reformulation standard or formula may not establish the existence of a significant public benefit. Similarly, where a settlement requires changes in air emissions or other changes in the defendant's practices, supporting evidence should show that the changes in air emissions or to the defendant's practices will result in emissions or exposures that are less than the emissions or exposures that either are present or were present at some time relevant to the litigation, or else the mere agreement to make the changes may not establish the existence of a significant public benefit.

...

(c) Necessity of Private Enforcement. To establish necessity of private enforcement, the plaintiff should establish that its continued prosecution of the action was necessary to obtain the relief in the settlement. For example, where a defendant proposed in writing to provide certain relief, and the settlement or judgment does not provide any significant additional relief, additional fees incurred after the time that the offer was rejected may not be reasonable or necessary.

(d) Reasonable Fees. Hourly fees should be those reasonable for attorneys of similar skill and experience in the relevant market area. Once a lodestar fee is a calculated, a multiplier of that amount is not reasonable unless a showing is made that the case involved a substantial investment of time and resources with a high risk of an adverse result, and obtained a substantial public benefit. No fees should be awarded based on additional time spent in response to the Attorney General's inquiries or participation in the case, unless specifically identified and approved by the court.

(e) Documentation. All attorney's fees and any investigation costs sought to be recouped in a Settlement should be justified by contemporaneously kept records of actual time spent or costs incurred, which describe the nature of the work performed. Declarations relying on memory or recreated, non-contemporaneously kept records may raise an issue concerning the accuracy of the time estimate.” (Cal. Code Regs., tit. 11, § 3201, subd. (b-e).)

“Upon motion, 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, ... and (c) such fees should not in the interest of justice be paid out of the recovery, if any.” (Code Civ. Proc., § 1021.5.)

The court finds the fees reasonable. (Novak Decl.)

The settlement also contains a general release. The court finds no violation in the release.

The motion for entry of the consent judgment is granted.

Non-Jury trial remains set for April 1, 2025.

Plaintiff to give notice.