Prop 65 Enforcement Litigation Update

Find out here about what's happening in private and public enforcement of Prop 65. This page describes current events regarding the enforcement and litigation of Prop 65; for additional information regarding specific enforcement actions, please see our Litigation Update. For previous enforcement news, see our archive. We've also moved most of the stories to their own pages, which you can link to below.

Contents

• Courts Reviewing Settlements under SB 471
• December 2001 60-day notices
• Certificate of Merit Litigation
• DiPirro and AG Square Off
• AG Settlement Data Report [through August 2001]
• Burden of Proof Clarified by Court of Appeal
• Court of Appeal holds Tobacco Notices Insufficient
• Court Denies Jury Trial

Court Denies Jury Trial in Prop 65 Enforcement Action

A San Francisco judge has held that there is no right to a jury trial in Prop 65 litigation. The latest development occurred in the long-running litigation over claimed discharges to drinking water from underground storage tanks in CBE v. Tosco. Judge Richard Kramer ruled that a Prop 65 action was essentially “equitable,” meaning that there is no right to trial by jury under the California Constitution (the Seventh Amendment to the federal Constitution does not control the right to trial by jury in civil cases under state law). The court rejected the plaintiff’s contention that the Prop 65 penalties were analogous to an action for debt, finding that they “can best be viewed as a financial incentive to private plaintiffs.”

More Courts Deny Jury Trial

Similar rulings have been reached in two separate cases venued in Alameda County. In the DiPirro Light Bulb Litigation filed in Alameda Superior Court, Judge Ronald Sabraw rejected plaintiff’s arguments that federal case law construing the right to jury trial under the Seventh Amendment, and providing a jury trial in the liability phase of a Clean Water Act enforcement case, does not apply to civil cases under California. Since the “gist” of a Prop 65 action is for equitable relief (injunction), Judge Sabraw granted the defendants’ motion for an order denying the right to jury trial. Judge Yolanda Northridge of the Alameda Superior Court entered a ruling denying a jury trial in DiPirro v. Mervyn's.

Settlement Data Available

The Attorney General has made available data collected by his office under SB 1269, which mandated reporting of all settlements to him.  Information on settlements in 2000, and through August 2001, is available [html/Excel).

Some highlights over the data collected over the first 22 months of reporting:

• Over $16 million in settlement payments were reported in 332 settlements.  This was comprised of $1.3 million in civil penalties (8% of the total), $10.6 million in attorney's fees (63%), and $4.7 million in "other" monetary payments (28%).   The mean monetary settlement was slightly more than $50,000.
• A total of 18 different private enforcers had entered into settlements in the time period.  30% were reached by Michael DiPirro (entering into a total of 100 settlements), 17% were reached by Consumer Advocacy Group (58 settlements), and 15% were reached by Mateel Environmental Justice Foundation (51 settlements).
• Michael DiPirro had collected over $3.5 million, including over $876,000 in civil penalties, both of which were more than any other enforcer in this time frame.  Other enforcers with at least $1 million in settlements were Mateel Environmental Justice Foundation ($2.9 million in 51 settlements), Environmental Law Foundation ($1.4 million in 7 settlements), Consumer Advocacy Group ($1.33 million in 58 settlements), and Edward Cross ($1.3 million in 1 settlement).

This page last updated 5/17/03