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Prop 65 Private Litigation Archive

This page was last updated on December 1, 1999.  More recent reports can be found through our Litigation and Private Enforcement Updates.

Attorney General's Reporting Regs Take Effect July 1, 2001

    As required by the passage of SB 1269, the Attorney General proposed regulations governing the reporting of Prop 65 lawsuits and settlements.  On June 1, 2001, the California Office of Administrative Law approved the proposed regulations.  

    Highlights are as follows:

    • Private enforcers must serve copies of complaints, and a reporting form, on the AG within 10 days of filing any complaints or amended complaints which add or remove parties or claims
    • Private enforcers must serve settlements on the AG within 2 days, and notify the court; the AG will have 30 days in which to review the settlement.  The AG's failure to object or otherwise respond shall not be construed as endorsement of the settlement
    • Private enforcers must provide any judgments to the AG within 5 days, and must serve any notices of appeal on the AG.
    • Private enforcers must file an affidavit of compliance at the time of filing of any judgment

    Revised regulations were issued by the AG in January 2001, along with his response to comments filed on the initial proposed regulations.  Comments requesting elimination of the requirement for electronic filing of documents were rejected, as the AG found this step necessary to enable access to such documents over the Internet. Minor clarifications in the language of the proposed regulations include the fact that a settlement may not be submitted to the court during the 30-day review period, unless required by court order or rule. 

    The rules require submission of this information on the AG's web site, and there is now a Proposition 65 page on the AG web site providing forms and instructions.  The page indicates that electronic filing is not currently available.

Declaratory Relief Suits SLAPPED

    On December 17, 1998, Equilon, as an assignee of Shell and Texaco, sued Consumer Cause Inc. in Los Angeles Superior Court, alleging that the defendant private enforcer was not serving proper 60-day notices under Prop 65.

    On February 1, 1999, Judge Barbara Meiers of the Los Angeles Superior Court granted Consumer Cause's motion to strike the complaint under California's anti-SLAPP statute. The court held that Equilon's declaratory relief complaint fell within the anti-SLAPP statute, for several reasons, including:

    (a) the chilling effect on 60-day notices if defendants could require the plaintiffs to litigate the sufficiency of the notices before enforcement litigation has begun;
    (b) The burden on the courts to become the source of "advisory opinions";
    (c) The problem of judicial efficiency over the issues in an enforcement action; and
    (d) The danger of prematurity of judicial action where no enforcement action may ever be filed.

    On December 18, 2000 the Court of Appeal affirmed the ruling in a published opinion [Word/pdf].  The court rejected Equilon's argument that its suit was not subject to the Anti-SLAPP statute because Equilon did not intend to preclude Consumer Cause from engaging in government petitioning, holding that "We decline to impose a burden on the party seeking protection from the SLAPP statute of proving that the plaintiff was motivated by an improper purpose." 

    Of import was the court's reasoning in concluding that Equilon was unlikely to prevail on its declaratory relief claim:

    There are important public policy reasons for concluding that declaratory relief is not necessary or proper in the context of Proposition 65 private enforcement actions.  The explicit purpose of the initiative is to allow members of the public to pursue water polluters because government investigation and prosecution was perceived as ineffectual or inadequate.  The initiative declares:“The people of California find that hazardous chemicals pose a serious potential threat to their health and well-being [and] that state government agencies have failed to provide them with adequate protection . . . .”(Historical and Statutory Notes, 40C West’s Ann. Health & Saf. Code (1999 ed.) foll. § 25249.5, p. 279.)  The goal of public participation in the enforcement process would be thwarted if every Health and Safety Code section 25249.7 notice could be subject to preliminary litigation by way of a declaratory relief action.Citizens and environmental groups will think twice before they alert government officials to water pollution violations by sending out the notice, if they fear they will be sued for doing so.The chilling effect of a rule allowing Proposition 65 private enforcers to be sued before they themselves decide to bring suit would seriously undermine the goals of the state initiative.

    Equilon has an adequate remedy at law that does not require equitable intervention. If Consumer Cause elects to pursue litigation, Equilon is entitled to raise the deficiencies in the Proposition 65 notice by way of demurrer, in a motion for summary judgment, or as an affirmative defense.  [Footnote.] By filing this declaratory relief action, Equilon seeks to litigate its defenses to a main action that Consumer Cause may never file.  [Footnote.]

    The courts generally do not entertain declaratory relief actions filed in response to a mere threat to sue on a matured claim relating to past misconduct. This is especially true when it appears that the equitable action is “no more than [an] attempt to set up defenses (under desirable auspices and venue) to an action which [the defendant] may, or may never, bring against him.” Watson v. Sansone (1971) 19 Cal.App.3d 1, 5.) If the Attorney General, district attorney or city attorney elects to pursue litigation against Equilon, the notice sent by Consumer Cause becomes moot because government officials are authorized to sue polluters without giving any prior notice. (Health & Saf. Code, § 25249.7, subd. (c).) In such a case, Consumer Cause will have unnecessarily incurred burdensome costs litigating the sufficiency of a notice that became moot."

    Review Granted by Supreme Court

    On April 11, 2001, the California Supreme Court issued an order granting Equilon's petition for review (see Minutes).  Equilon Enterprises was granted review in combination with Navellier v. Sletten, an unpublished opinion from the First Appellate District.  

    According to the Supreme Court's April 16 press release, "Equilon Enterprises and Navellier present the issue of whether a defendant seeking the dismissal of an action under the anti-SLAPP statute (Code Civ. Proc., § 425.16) must show that the action was brought with the intent to chill the defendant’s exercise of the constitutional rights of free speech or to petition the government for redress of grievances."

Prior Settlements Bar Subsequent Suits

On February 26, 1999, the Second Appellate District, Division Three, held that a settlement with one private enforcer over Prop 65 violations can bar subsequent actions. On June 16, after it had granted a rehearing requested by the plaintiffs, the court issued another opinion, essentially reaffirming its original analysis. Now, the California Supreme Court has depublished the opinion, and the Second District has held in an unpublished opinion that a previous diesel settlement does not bar a subsequent private action.  Read more.

EDF Settles with Hospitals over Past EtO Emissions

The Environmental Defense Fund has reached a settlement with three hospitals over past emissions of ethylene oxide. This settlement is apparently the first enforcement action to achieve penalties and injunctive relief for alleged violations that had been ceased before the action was filed. The defendants, Sutter Community Hospitals of Sacramento, Kaiser Foundation Hospitals, and Mercy Healthcare Sacramento, agreed to pay $250K to EDF for attorney's fees and future activities. Additionally, the defendants agreed to a court declaration that their previous newspaper warnings were inadequate, and to the provision of new warnings, even though no emissions were ongoing.

60-Day Notices

Private Enforcer Sued

On December 17, 1998, Equilon, as an assignee of Shell and Texaco, sued Consumer Cause Inc. in Los Angeles Superior Court, alleging that the defendant private enforcer was not properly sending 60-day notices under Prop 65. Consumer Cause has been represented by Los Angeles attorney Morse Mehrban, who has served hundreds of 60-day notices on behalf of three clients (in addition to Consumer Cause, Mehrban's clients include Consumer Advocacy Inc and Reuben Yeroushalmi).

On February 1, 1999, Judge Barbara Meiers of the Los Angeles Superior Court granted Consumer Cause's motion to strike the complaint under California's anti-SLAPP statute. The court held that Equilon's declaratory relief complaint fell within the anti-SLAPP statute, for several reasons, including:

(a) the chilling effect on 60-day notices if defendants could require the plaintiffs to litigate the sufficiency of the notices before enforcement litigation has begun;
(b) The burden on the courts to become the source of "advisory opinions";
(c) The problem of judicial efficiency over the issues in an enforcement action; and
(d) The danger of prematurity of judicial action where no enforcement action may ever be filed.

Of some interest was the court's comment that Consumer Cause had advised the court "that it has no intention whatsoever of filing any lawsuit at all based on e Prop 65 notice in issue."

Defective 60-Day Notice Requires Dismissal

On March 11, Judge Paul Boland of the Los Angeles Superior Court ruled that a defective 60-day notice required dismissal of a Prop 65 cause of action. In the case, filed by a number of motion picture studio employees over chemical exposures, the plaintiffs argued that their motion for leave to file an amended complaint complied with the notice requirement. The court denied leave to amend the complaint once a proper 60-day notice was served, holding that the only proper method was for the plaintiffs to file an additional complaint after properly serving the defendants with a 60-day notice.

Court Rules that City Attorney Must Receive 60 Day Notice

A Los Angeles judge has ruled that the failure of the plaintiff to serve a 60 day notice on the Torrance City Attorney was fatal to a proposed Prop 65 enforcement action. In California Earth Corps v. Martin Brass Foundry, the defendant's original demurrer on this issue was overruled. Defendant moved for reconsideration, supported by the declaration of the Torrance City Attorney, and an amicus brief by Los Angeles City Attorney James Hahn. On January 6, the court reconsidered its earlier ruling, and sustained the demurrer, dismissing the Prop 65 cause of action.

AG Rebukes Mehrban over Device Notices

Deputy Attorney General Ed Weil has sent a letter to Morse Mehrban regarding notices sent by Consumer Cause over exposures from implanted medical devices. More information.

AG Intervenes in Nail Polish Litigation

Noted Southern California toxic tort litigator Rafael Metzger created a stir in the Prop 65 community when he recently filed, on behalf of the Toxic Injuries Corp., several private enforcement actions against manufacturers of nail polish over alleged failure to warn of the presence of toluene. The defendants had previously been sued by As You Sow, and the Attorney General's office had approved settlements which did not require warnings to nail salon customers or the general public. The AG has now intervened in the TIC litigation, on the basis that the defendants had been complying with the previous settlement.

Trespass Claims

On June 11, 1996, a number of defendants in Mateel Environmental Justice Foundation v. Koll Management Services, et al. filed a cross-complaint against the plaintiff private enforcer, alleging causes of action sounding in trespass and unfair business practices. Mateel's complaint alleges that individuals in parking structures are exposed to listed chemicals without being given warnings, and the defendants are vigorously contesting their liability for such exposures. In a novel twist, however, the defendants alleged in their cross-complaint that, by entering the garages for the purpose of testing, plaintiff committed trespass and violated the state's unfair competition law.

The plaintiff responded by demurring to the cross-complaint on the ground that consent was given to enter the garages. The cross-complaint has spurred a flurry of amicus involvement, with a number of parties arguing that imposing liability on the plaintiff would be contrary to First Amendment principles. The trial court recently sustained the demurrers to the complaints, holding that the defendants did not have a sufficient possessory interest in the garages, and had given implied consent to the investigators to conduct testing. The court also held that the cross-complaint was an improper SLAPP lawsuit.

In early March 1997, Judge Robinson of the San Francisco Superior Court awarded the plaintiff over $70,000 in attorney's fees claimed to have been incurred as a result of the demurrer to the cross-complaint. According the defense attorney, Roger Carrick, both the underlying ruling and the fee award will be appealed.

Ampco and Mateel recently entered into a consent judgment, providing that the defendants would provide Prop 65 warnings, and make monetary payments. The settlement contained an unusual "opt-in" procedure that would allow other parking garage operators to settle as-yet unfiled claims by paying $1000 per garage (which payment would offset Ampco's settlement).

Separation of Powers

The Second District Court of Appeal, Seventh Appellate District, has affirmed the dismissal of a declaratory relief action filed by the National Paint & Coatings Association (NPCA) and the California Paint Council (CPC), alleging that private enforcement of Proposition 65 violates the California constitutional separation of powers provision, and the due process clauses of the California and U.S. constitutions. NPCA v. California was filed in Los Angeles Superior Court on May 10, 1996, naming as defendants Governor Pete Wilson, Attorney General Dan Lungren, and OEHHA Interim Director, James Stratton. On September 13, 1996, Commissioner Emilie Elias sustained the defendants' demurrers to the complaint. The appellate court's ruling [pdf/Word] was filed on October 22, 1997.

The demurrers and trial court ruling did not challenge the claim that private enforcement of Prop 65 has been improper in certain circumstances. The trial court agreed with the defendants that it did not rise to the level of a constitutional violation, and recognized that this was an issue for appellate courts and a published opinion. The Court of Appeal affirmed the trial court, relying on the fact that the Attorney General, who defended the state, had "never remotely suggested" that private enforcement of the Act was unconstitutional. It also said that the plaintiffs had not put sufficient "examples" of private enforcement "undermining" the Attorney General's authority in the complaint.

NPCA's petition for review in the California Supreme Court was denied, with only Justice Mosk voting to grant review. For further information on this case, contact jmargulies@pmcos.com.

Standing to Litigate

In As You Sow v. Cotter & Company, the private plaintiff sought to "co-litigate" with the Attorney General, even though their Prop 65 complaint was filed later. The trial court initially allowed As You Sow to proceed, then changed its ruling, and ordered that As You Sow could not proceed with its enforcement action. Nevertheless, after the defendant settled with the state, As You Sow sought, and was awarded, over $200,000 in legal fees and costs it had incurred.

The First District Court of Appeal rejected Cotter & Company 's appeal of the award of attorney's fees. The court rejected Cotter's argument that As You Sow could not obtain fees under the "private attorney general" doctrine where the defendant was being sued by state prosecutors. The court declined to answer the question of whether AYS had standing to sue under Prop 65, affirming the award of fees on the basis that the trial court had allowed AYS to intervene in the Attorney General's action.

A San Francisco court has rejected a defendant's bid to dismiss an action filed by the Attorney General.  People v. Alva-Amco Pharmacal Cos., SF Superior no. 300827.  The private enforcer filed an action against coal tar shampoo one week before the AG filed a nearly identical complaint.  The AG requested consolidation of pretrial activities, and the defendant demurred to the AG's complaint, contending that once the 60-day period expires and a private enforcer files his action, the AG lacks standing to sue.  The court overruled the demurrer in an order dated May 27, 1999, which did not specify the reasoning.

Grecian Formula Targeted by CEH

The Center for Environmental Health settled with Combe, Inc., manufacturer of Grecian formula, over claims that the product exposes users to lead acetate, listed as a carcinogen and reproductive toxin. In a news report, the manufacturer claimed that the product does not require a Prop 65 warning.

A subsequent suit by other parties was recently held to be barred by the settlement reached in this case.  Read the story.

Mateel Pursues Outboard Engines, Railroad Ties

The Mateel Environmental Justice Foundation and the Earth Island Institute have filed a notice alleging violations of Prop 65 by manufacturers of outboard motors and jet ski engines. Mateel and EII claim that exhaust from the engines causes discharge of numerous chemicals into drinking water in violation of the act. See Earth Island's Press Release.

Mateel filed an action on January 22 against Waban Inc (HomeBase) and The Home Depot, alleging that their sale of railroad ties for gardening and landscaping exposes individuals to dioxin, creosote and other related chemicals.

NRDC and ELF Sue over Water Meters

In an action filed February 10, 1998, in San Francisco, the Natural Resources Defense Council and Environmental Law Foundation claim that four manufacturers of water meters and component parts violated both the warning and discharge provisions of Prop 65 due to the leaching of lead from such products. This action was filed nearly two months after the Supreme Court's decision in People v. American Standard that faucets were subject to the discharge prohibitions of the act.

The defendants' motion arguing that the meters are exempt under Prop 65's provision excluding public water utilities from its requirements was denied in a ruling dated November 18, 1998. The manufacturers had argued that the meters are sold to utilities, whose purchase specifications require brass cases which use a copper alloy containing 6-8% lead. The court did not rule on the question whether meters expose individuals to lead, only on the fact that the manufacturers were not exempt from Prop 65, and that even though the manufacturers sold to exempt parties (public water companies), their products had to comply with Prop 65.

CISC threatens Cheese Producers

The Working Group on Carcinogenic and Immune Suppressing Chemicals (CISC) has sent 60-day notices alleging exposure to di(2-ethylhexyl) phthalate (DEHP) from a variety of cheese products. DEHP is used to make soft PVC plastic, and is listed due to an NTP animal bioassy showing carcinogenicity. CISC, represented by Los Angeles attorney Shawn Khorrami, claims that DEHP leaches from plastic products, and that alternative plasticizers and replacement products are available which do not cause exposures to listed chemicals.

CISC Expands to Lindane and Tuna

CISC recently expanded its enforcement activities, serving 60-day notices on the manufacturers and retailers of Lindane (a prescription hair lice treatment) and tuna fish (which is alleged to contain mercury and methylmercury compounds). The Attorney General's office has taken over prosecution of the Lindane matter, which is expected to resolve lingering questions about the content of Prop 65 warnings for prescription drugs.  On May 17, 1999, the San Francisco Superior Court granted summary judgment for the defendant, holding that its FDA-approved warnings were clear and reasonable.  Read the story.

Civil Penalties

Court Rules that Penalties Apply to Each Warning

A Riverside Superior Court has ruled that failure to give a Prop 65 newspaper notice for an environmental exposure was only one violation, subjecting the defendant to a maximum penalty of $10,000 per year (media notices are required once each quarter). The ruling came in California Earth Corps v. U.S. Battery Mfg. Co., involving lead emissions from battery manufacturing operations. The court apparently rejected the claim that penalties were to be measured by the number of individuals to whom warnings were required to be given. The court also choose to apply the specific one-year statute of limitations which applies to penalties, limiting the total penalties available against the defendant to $10,000. The court denied summary judgment on the issues of risk assessment and adequacy of U.S. Battery's newspaper warnings.

In August, the court indicated, however, that it may reconsider its ruling on the civil penalty issue, and would give a final ruling on penalties following trial.

DiPirro Claims To Be High Penalty Enforcer

In a press release issued on September 14, 2000, Oakland attorney Hudson Bair claimed that his client, Michael DiPirro, has collected more in civil penalties under Prop 65 than any other public or private enforcer (and than all others combined) during fiscal year 1999-2000.  The release included figures from the Hazardous Substance Account, indicating that DiPirro contributed $463,275 in civil penalties during that time, compared to $273,000 for all other enforcers, including the Attorney General ($191,000).  In FY 1998-99 the Attorney General collected $386,000, compared to DiPirro's $200,000.     Bair stated that approximately 2/3 of the settlements reached by DiPirro have also included reformulation of consumer products. 

Two Parking Garages Settle

Two parking garage companies, Koll Management Services and Kemper Real Estate Management Co, have agreed to settle Prop 65 claims brought by Mateel Environmental Justice Foundation over alleged exposures to listed chemicals on their property. Both agreed to provide warnings of the exposures. Kemper will pay $16,500 in fees and costs and $6000 in restitution. Koll will pay a $5000 penalty, $50,000 in fees and costs, and $10,000 in resitution.

Ampco and Mateel recently entered into a consent judgment, providing that the defendants would provide Prop 65 warnings, and make monetary payments. The settlement contained an unusual "opt-in" procedure that would allow other parking garage operators to settle as-yet unfiled claims by paying $1000 per garage (which payment would offset Ampco's settlement).

Saw Blades and Drill Bits

Mateel Environmental Justice Foundation has served 60-day notices on 16 manufacturers of concrete and masonry saw blades and drill bits. Mateel alleges that these tools expose individuals to a number of chemicals, including silica, cadmium, cobalt, lead, and hexavalent chromium.

A consent judgment has been entered in litigation filed by Mateel. Mateel Environmental Justice Foundation v. Rawplug Co., SF no. 988408. The judgment covers warnings for exposures to crystalline silica from the use of saw blades, drill bits, and grinding wheels. Warnings may be provided by retail signs, owner's manuals for power tools used with the products, or on the products or their packaging. Total payments to the plaintiff were $325,000, of which $200,000 was directed toward Mateel's attorney's fees.

Welding Supplies

Michael DiPirro, "a citizen of San Francisco," has filed a number of lawsuits against manufacturers of welding supply products, alleging consumer and workplace exposures to nickel, hexavalent chromium, cobalt, and lead. See new filings for a list. He is represented by David Bush, a former associate in the Chanler Law Group.

Attorneys Fees for Private Enforcers

In an unpublished decision filed in January 1998, the California Court of Appeal, First Appellate District, Division Seven, affirmed the award of attorney's fees to As You Sow, which had "co-litigated" an enforcement action against Cotter & Company (now known as TruServ Corporation) with the California Attorney General. Cotter had argued on appeal that co-litigation was invalid, and that AYS was not entitled to fees as it lacked individual standing to prosecute where the Attorney General had filed an enforcement action. The court declined to reach the question of whether AYS had standing, instead relying upon the trial court's order allowing AYS to intervene as a basis for allowing the fee award.

On April 9, 1999, Michael DiPirro filed his opening brief on appeal from an order denying his petition for leave to intervene in a crystalline silica case filed by the Attorney General's office.  DiPirro had undertaken investigation and served a substantial number of 60-day notices, and the AG determined to take over the action and oppose his request for leave to intervene.  DiPirro has argued on appeal that he has several interests in the litigation, including the interest in "a successful conclusion," toxicological issues that may affect his other cases, and of course his "pecuniary interest" in obtaining 25% of any civil penalties and his attorney's fees for investigation and costs incurred before the AG filed his action.

On November 30, 1999, the First District Court of Appeal affirmed the order denying DiPirro's request for intervention.  The court did not reach the question of whether DiPirro could have co-litigated with the state, instead deciding that the trial court correctly exercised its discretion in denying intervention.  The court held that the absence of any "measurable indicia of actual interest in the action, such as an itemization of expenses or an accounting of the time devorted to investigating these particular defendants . . . is insufficient to justify intervention."  The court also noted that DiPirro had "no special interest that distinguishes him from any other member of the public" in seeking to enforce Prop 65.

Injunction Entered in Silica Exposure Case

On January 26, 1998, the Superior Court issued a preliminary injunction in Center for Environmental Health v. Resco Products, over the adequacy of warnings for products containing crystalline silica. The court found that the plaintiff was likely to prevail on the merits, where the product had been distributed with a warning that stated:

"RISK PHRASE(S): Prolonged breathing of dust will increase the risk of serious lung disease (silicosis). According to the International Agency for Research on Cancer, there is sufficient evidence for the carcinogenicity of inhaled crystalline silica in the forms of quartz or cristobalite from occupational sources."

In addition to arguing that this language was sufficient for Prop 65, CEH also argued that it was an out-of-state manufacturer of this industrial-use product, and that the recent OSHA ruling prohibited Prop 65 enforcement.

Other developments in silica litigation.

Aerojet CERCLA Litigation

Following a December 1997 60-day notice, Communities for a Better Environment filed a Prop 65 enforcement action in Sacramento Superior Court, alleging that Aerojet violated Prop 65's discharge prohibition due to migration of listed chemicals from Aerojet's Superfund site in Sacramento. Citizens for A Better Environment v. Aerojet-General.. Aerojet removed the case to federal court, alleging that the CBE action was an improper attempt to interfere with the consent decrees entered in the Superfund litigation. CBE has sought to remand the case to state court, arguing that it is allowed to assert relief under Prop 65 that is different and additional to the remedies provided for in the federal consent decrees.

Contempt Decree Sought Against K-Mart

In 1996, K-Mart entered into a consent judgment with Mateel Environmental Justice Foundation, requiring reproductive toxicity warnings for fishing tackle sold both in unpackaged bins, and in packaged products.  On August 26, 1999, Mateel moved for an order to show cause re: contempt, alleging that it had undertaken investigation which showed that K-Mart had not complied with its obligations under the judgment.  On August 27, 1999, the San Francisco Superior Court, Judge Pollak, issued the order to show cause, and allowed Mateel to engage in discovery relating to any alleged violations of the consent judgment.