Judge Thomas D. Long, Case Number: 22STCV35454, Date: 2023-08-17 Tentative Ruling

On November 8, 2022, Plaintiff EnviroProtect, LLC filed this action against Defendants GMA Accessories Inc. and T.J. Maxx of CA LLC for civil penalties and injunctive relief based on violations of Health & Safety Code section 25249.6 et seq.

On June 30, 2023, Plaintiff filed this motion to approve a consent judgment entered into with Defendant GMA Accessories, Inc. Plaintiff asserts that the consent judgment is fair and reasonable to the parties, serves the public interest, has been submitted for review to the Office of the Attorney General of California, and fully complies with the statutory and regulatory requirements of Proposition 65. (Motion at p. 1.)

Plaintiff served this motion on the Attorney General, who requested certain amendments. (Kawahito Suppl. Decl. ¶ 4.) After the parties agreed to make the changes, the Attorney General’s office indicated that it would waive the 45-day notice requirement. (Kawahito Suppl. Decl. ¶ 5.)

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 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, § 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.)

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.)

Plaintiff submitted a copy of the proposed consent judgment. The Covered products are hair accessories and their packaging, including the Charlotte Hair Elastics and Storage Bags, manufactured, imported, sold, and/or distributed for sale in California by GMA. (Amended Consent Judgment, § 1.5) Under the Amended Consent Judgment, after the effective date, Covered Products that are imported, manufactured, and/or sold or offered for sale or purchase for sale in or into California, shall be deemed to comply with Proposition 65, and be exempt from any Proposition 65 warning requirements with respect to DEHP if they meet the standard of “Reformulated Products.” (Id., 2.1(1.1).) Covered Products manufactured prior to the effective date or currently in the channels of distribution with distributors and retailers may continue to be sold-through without reformulation or warning. (Ibid.)

Covered Products that do not meet the warning exemption standard set forth in Section 2.1 shall be accompanied by a Proposition 65 warning. (Id., §§ 2.2, 2.3.) The warning language will state either “This product can expose you to chemicals including Di-(2-ethylhexyl) phthalate (DEHP), which are known to the State of California to cause cancer, and birth defects or other reproductive harm. www.P65Wamings.ca.gov” or “Cancer and Reproductive Harm - www .P65Wamings.ca.gov.” (Id., § 2.3.) A pictogram of a yellow triangle with an exclamation mark will accompany the warning. (Ibid.) For Covered Products sold on the internet, the warnings will comply with the requirements of 27 California Code of Regulations section 25602, subdivision (b), effective August 30, 2018. (Id., § 2.4.) 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.

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.)

Plaintiff seeks to recover $30,000 in attorney fees and costs, and Defendant has agreed. (Amended Consent Judgment, § 4.) The Court finds that the amount of $13,500 represents reasonable attorney fees for the work performed as set forth in the summary of actions undertaken in investigating, litigating, and settling this action. (See Kawahito Decl. ¶¶ 5-9.)

Based on this, the Court finds that the amount of attorney fees and costs provided to Plaintiff in the settlement is reasonable.

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).)

Defendant will pay $3,000 to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and Plaintiff as civil penalties. (Amended Consent Judgment, § 3.1.) Of this amount, 75% will be paid to OEHHA and 25% will be paid to Plaintiff. (Ibid.)

Plaintiff purports to release claims that were or could have been asserted by it on behalf of itself and the public interest against Defendant and other specified Releasees for any violation of Proposition 65 based on the alleged failure to warn about alleged exposures to DEHP contained in the Covered Products that were manufactured, imported, distributed, sold, and/or offered for sale up through the Effective Date. (Amended Consent Judgment, § 5.1.) This release is specifically limited to Defendant’s Covered Products and claims presented in this lawsuit. The scope of this release is therefore proper. Plaintiff also individually waives rights under Civil Code section 1542, which is appropriate because it does not purport to release claims on behalf of the public. (Id., § 5.2.)

The Motion for Order to Approve Proposition 65 Settlement and Consent Judgment is GRANTED. The Court will sign the proposed Amended Judgment, filed on July 24, 2023.

On June 5, 2023, Plaintiff filed a Notice of Settlement of Entire Case. Defendant T.J. Maxx of CA LLC is not a party to the Amended Consent Judgment. Accordingly, an Order to Show Cause Re: Dismissal (Settlement) is scheduled for _________ at 8:30 a.m. in Department 48 at Stanley Mosk Courthouse.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court