Case Number: BC620612??? Hearing Date: July 25, 2016??? Dept: 37
CASE NAME: Ecological Alliance, LLC v. DAS Companies, Inc.
CASE NO.: BC620612
HEARING DATE: 7/25/16
DEPARTMENT: 37
CALENDAR NO.: 11
TRIAL DATE: None
NOTICE: OK
SUBJECT: Motion to Approve Stipulated Judgment
MOVING PARTY: Plaintiff Ecological Alliance, LLC
OPPOSING PARTY: None
COURT?S TENTATIVE RULING
The unopposed motion is granted. Counsel for Plaintiff to give notice.
STATEMENT OF THE CASE
This is an action for civil penalties and injunctive relief arising out of Defendant DAS Companies, Inc.?s alleged failure to warn the California public about the presence of lead in its brass padlocks, which are offered for sale throughout the state. In addition to civil penalties, Plaintiff seeks injunctive relief to compel Defendant to provide the warning required by the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf. Code, ? 25249.6 et seq.) (Proposition 65).
DISCUSSION
I. Proposition 65
Proposition 65 authorizes citizens to bring private enforcement actions if they provide the required notice to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator, and if neither the Attorney General nor the appropriate prosecutor commences an action against the violation. (Health & Saf. Code, ? 25249.7, subd. (d).) If a private enforcement action settles, the plaintiff must submit the settlement to the court for approval upon noticed motion. (Id. ? 25249.7, subd. (f)(4).) The court may approve the settlement only if it makes the following findings: (i) the warning that is required by the settlement complies with the Act; (ii) the award of attorney fees is reasonable under California law; and (iii) the penalty amount is reasonable based on certain specified criteria. (Id. ? 25249.7, subd. (f)(4)(A)-(C).)
II. The Proposed Stipulated Consent Judgment
The terms of the consent judgment are as follows. Defendant will either reformulate the brass padlocks so they do not exceed more than 100 parts per million lead or provide warnings as set forth in paragraphs 3.3 and 3.4 of the judgment. Defendant will pay $5,000 in civil penalties and $25,000 in attorney fees and costs. In
addition, Plaintiff will release all claims under Proposition 65 or any related actions arising from the sale, distribution, or use in California of any of the subject products, including all claims that may arise from the acts alleged in Plaintiff?s notice or complaint, including a Civil Code section 1542 waiver.
III. The Warning
The proposed warning that shall be used in the event Defendant does not reformulate the product complies with the Act. The pertinent statute provides, ?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, emphasis added.) The term ?clear and reasonable? means ?reasonably calculated, considering the alternative methods available under the circumstances, to make the warning message available to the individual prior to exposure. The message must clearly communicate that the chemical in question is known to the state to cause cancer, or birth defects or other reproductive harm.? (Cal. Code Regs., tit. 27, ? 25601.) Here, the proposed warning is as follows:
WARNING: This Product contains chemical known to the State of California to cause cancer and birth defects or other reproductive harm.
(? 3.4.) The warning shall be placed on or within the unit packaging of the brass padlocks or affixed to the padlocks themselves in a manner reasonably calculated to ensure that the warning is seen by the consumer. (? 3.3.) These provisions comply with the Act?s warning obligations.
IV. The Civil Penalty
To determine whether the penalty is reasonable, courts consider the following factors: the nature and extent of the violation; the number and severity of the violations; the economic effect of the penalty on the violator; whether the violator took good faith measures to comply with the Act and the time these measures were taken; the willfulness of the violator?s misconduct; the deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole; and any other factor that justice may require. (Health & Saf. Code, ? 25249.7, subd. (b)(2)(A)-(G).) Here, the civil penalty of $5,000 is reasonable. Although the parties apparently disagree about the potential for exposure given the type of product at issue, Defendant responded immediately to the 60-day notice served by Plaintiff in an attempt to understand and remediate the alleged violations. Defendant also promptly agreed to provide warning labels on all future products to warn consumers of the potential for lead
exposure. The amount of the penalty is reasonable to serve a deterrent purpose while also recognizing Defendant?s conduct.1
V. The Attorney Fees and Costs
The attorney fees and costs of $25,000 also are reasonable. It was Plaintiff?s action that caused the change in Defendant?s conduct. (Cal. Code Regs., tit. 11, ? 3201, subd. (a).) It is reasonable that Defendant has agreed to reimburse Plaintiff for the fees and investigative costs incurred to effect the change in conduct. Plaintiff?s counsel states that he has spent 52 hours on this matter. He conducted preliminary investigations into the violations; reviewed test results of the product; consulted a toxicologist; prepared and dispatched the 60-day notice to the California Attorney General, every District Attorney in California, and the City Attorney of every city of more than 750,000 inhabitants; conferred with Defendant?s counsel; prepared the stipulated consent judgment; drafted the complaint in this action; and produced the motion for approval. Counsel bills at the hourly rate of $500. This would lead to a lodestar figure of $26,000 and Plaintiff seeks $25,000. Based on the amount of work involved in identifying the alleged violations, notifying the appropriate authorities, and working with Defendant to remedy the situation, and in light of the important public interest in work that benefits the consumers of this state, the court determines that the attorney fees and costs are reasonable.
Accordingly, the motion is granted.
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1 Seventy-five percent of the penalty will go to the Safe Drinking Water and Toxic Enforcement Fund, and the remaining twenty-five percent will go to Plaintiff. (Health & Saf. Code, ? 25249.12, subd. (c).)