Case Number: 20STCV10147 Hearing Date: December 03, 2020 Dept: 78
Superior Court of California
County of Los Angeles
Department 78
| APS&EE, LLC;
Plaintiff, vs. SHAPIRO METAL SUPPLY COMPANY, et al..; Defendants. |
Case No.: | 20STCV10147 |
| Hearing Date: | December 3, 2020 | |
| [TENTATIVE] RULING RE:
PLAINTIFF APS&EE, LLC’S MOTION TO APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT JUDGMENT |
||
Plaintiff APS&EE’s Motion to Approve Proposition 65 Settlement and Consent Judgment GRANTED.
FACTUAL BACKGROUND
This is an action for civil penalties and injunctive relief to enforce Health & Safety Code § 25249.5 et seq. Plaintiff APS&EE, LLC, the public interest (“APS&EE”) and Defendant is Shapiro Metal Supply Company (“Shapiro”). (Compl. ¶ 1.) APS&EE alleges that Shapiro manufactures, distributes, and sells brass bars that contain hazardous levels of lead, which is prohibited under Proposition 65 to be distributed/exposed to persons in California without a Proposition 65-compliant warning. (Compl. ¶¶ 3-8.)
PROCEDURAL HISTORY
APS&EE filed the Complaint on March 13, 2020, alleging one cause of action for Violation of Proposition 65.
The parties signed a Proposed Stipulated Consent Judgment on August 25, 2020.
APS&EE filed the present Motion to Approve and Enter Stipulated Consent Judgment on September 29, 2020.
Shapiro has not filed any response.
DISCUSSION
- MOTION FOR ENTRY OF STIPULATED CONSENT JUDGMENT
Code Civ. Proc. section 664.6 states that:
If parties to pending litigation stipulate, in a writing signed by the parties outside the presence of the court or orally before the court, for settlement of the case, or part thereof, the court, upon motion, may enter judgment pursuant to the terms of the settlement. If requested by the parties, the court may retain jurisdiction over the parties to enforce the settlement until performance in full of the terms of the settlement.
“Section 664.6 permits the trial court judge to enter judgment on a settlement agreement without the need for a new lawsuit. [Citation.] It is for the trial court to determine in the first instance whether the parties have entered into an enforceable settlement. [Citation.] In making that determination, ‘the trial court acts as the trier of fact, determining whether the parties entered into a valid and binding settlement. [Citation.] Trial judges may consider oral testimony or may determine the motion upon declarations alone. [Citation.] When the same judge hears the settlement and the motion to enter judgment on the settlement, he or she may consult his [or her] memory. [Citation.]’ [Citation.]” (Osumi v. Sutton (2007) 151 Cal.App.4th 1355, 1359–1360.)
The stipulated consent judgment here includes the following. First, Shapiro will not show distribute, sell or offer for sale Shapiro Metal Supply brass bars, including 3/8” square bar (the “Products”) in California unless (a) the Product contains no more than 100 parts per million (0.01%) of Lead (“Reformulated Product”), or (b) the Products are distributed, sold, or offered for sale with a clear and reasonable warning [in compliance with Proposition 65].” (Consent ¶¶ 2.1-2.2.) Second, Shapiro will pay $2,000 in civil penalties, which includes $1,500.00 to the State of California and $500 to APS&EE. (Consent ¶ 3.1.) Third, Shapiro is to pay $15,000 in attorneys’ fees and costs. (Consent ¶ 3.2.)
APS&EE argues that the Consent Judgment “was entered into in good faith, is fair and reasonable, and is in the public interest. […] Because Defendant has demonstrated a commitment to ensuring that it will comply with Proposition 65 with regard to the Products by agreeing to the reformulation standard or specific warning requirements related to Lead in the Products, and that it will provide some compensation to the State of California for the violations alleged in the Complaint, it is reasonable to conclude that the settlement confers a significant benefit to the public.” (Motion at p. 7.)
The agreement has been signed by representatives from both parties, and no opposition to the present motion has been filed by either Shapiro or the Attorney General.
The Court thus finds that the parties have entered into a valid settlement agreement. However, Health & Safety Code § 25249.7 provides for additional criteria to approve a settlement of a Proposition 65 lawsuit, as follows:
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.
(C) The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b).
(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 & Safety Code § 25249.7, subd. (f)(4)–(5).)
The code states, “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 & Safety Code § 25249.6.) The settlement here provides that Shapiro is to place on the Products on Proposition 65 warning notifying the consumers of the chemicals contained in the products (lead, in this case) and directing the consumers to www.P65warnings.ca.gov for more information concerning such warnings. (Consent ¶ 2.2.) “The warning shall be accompanied by a symbol consisting of a black exclamation point in a yellow equilateral triangle with a bold black outline. Where the label for the product is not printed using the color yellow, the symbol may be printed in black and white. The symbol shall be placed to the left of the text of the warning, in a size no smaller than the height of the word ‘WARNING.’” (Consent ¶ 2.2.) The Court finds that the agreement complies with the warning requirement.
The attorneys’ fees and costs requested in this action are $15,000 representing 53.5 hours of attorney work at $550 per hour and 11.3 hours of work at $200 per hour, which is a reduction from the “lodestar” amount that would have been $32,000. (Novak Decl. ¶ 12, Exh. A.) The Court finds this amount reasonable.
The penalty amount requested in this action is $2,000, with $1,500 (75%) payable to California’s Office of Environmental Health Hazard Assessment and $500 payable to APS&EE. (Consent & 3.1.)
The statutory reasonableness for a penalty amount is analyzed as follows:
(b) (1) A person who has violated Section 25249.5 or 25249.6 is liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.
(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.
(C) The economic effect of the penalty on the violator.
(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 & Safety Code § 25249.7, subd. (b)(1)–(2).)
The Court finds this penalty amount reasonable. The amount payable to the Office of Environmental Health Hazard Assessment is 75% as required by 11 C.C.R. § 3203. Further, offset payments to a third party, such as a plaintiff, are authorized pursuant to 11 C.C.R. § 3203(d).
The Court finally finds that this suit promotes the public interest. As a result of this suit, Shapiro shall either reduce the concentration of lead from the Products or post the required warning. The case is thus “presumed to confer a significant benefit on the public.” (11 C.C.R. § 3201, subd. (b)(1).)
Plaintiff APS&EE’s Motion to Approve Proposition 65 Settlement and Consent Judgment GRANTED.
Plaintiff to provide notice.
DATED: December 3, 2020
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Hon. Robert S. Draper
Judge of the Superior Court