Judge Thomas D. Long, Case Number: 24STCV06752, Date: 2024-12-26 Tentative Ruling

On March 18, 2024, Plaintiff Ramy Kaufler Eden filed this action against Defendant Radc Enterprises Inc. for civil penalties and injunctive relief based on violations of Health & Safety Code section 25249.6 et seq.

On November 7, 2024, Plaintiff filed this motion to approve a consent judgment entered into with Defendant. 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. (See Charo Suppl. Decl. ¶¶ 5-10.)

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. (Charo Decl., Ex. A. [“Consent Judgment”].) The Covered Product is “Unleaded Gasoline (Wholly Vaporized).” (Char Decl. ¶ 4; see Consent Judgment at p. 1.) Under the Consent Judgment, as of the effective date, Defendant must post a clear and reasonable exposure warning. (Consent Judgment § 3.1.) The warning will state: “WARNING: Breathing the air in this area or skin contact with petroleum products can expose you to chemicals including benzene, motor vehicle exhaust and carbon monoxide, which are known to the State of California to cause cancer and birth defects or other reproductive harm. Do not stay in this area longer than necessary. For more information go to www.P65Warnings.ca.gov/service-station.” (Consent Judgment § 3.1.) The word “WARNING:” shall be in all capital letters and in bold font, followed by a colon. The warning symbol to the left shall be a black exclamation point in a yellow equilateral triangle with a black outline. The symbol must be in a size no smaller than the height of the word “WARNING.” The warning shall be posted on a sign at, or on, each gas pump at the Subject Location and the warning must be printed in no smaller than 22-point type and be enclosed in a box. If other signage at the Subject Location is provided for the public in a language other than English, the warning must be provided at the Subject Location in English and that other language.

This satisfies the warning requirement set forth in Health and Safety Code section 25249.6. The Court therefore 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 $8,000.00 in attorney fees and costs, and Defendant has agreed. (Consent Judgment § 4.4.) The Court finds that the amount of $8,000.00 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 Charo Decl. ¶¶ 12, 16.)

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 $2,500.00 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 $5,000.00 to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and Plaintiff as civil penalties. (Consent Judgment, § 4.1.1) Of this amount, 75% ($3,750.00) will be paid to OEHHA and 25% ($1,250.00) will be paid to Plaintiff.

Plaintiff purports to release claims arising from any violation of Proposition 65 or any other statutory or common law regarding the failure to warn about exposure to arsenic from the Covered Product. (Consent Judgment § 5.2.)

This release is specifically limited to Defendant’s Covered Product 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. (Consent Judgment § 5.4.)

The Motion for Stipulated Judgment is GRANTED. The Court will sign the Proposed Order and Judgment, submitted on November 7, 2024.

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