2018-00230677-CU-MC

Anthony E. Held, PHD PE vs. RV Designer

Nature of Proceeding: Motion to Approve 65 Settlement and Consent Judgment

Filed By: Paras, Laralei S.

Plaintiff Anthony E. Held, Ph.D., P.E.’s Motion for Order Approving the Settlement (Consent Judgment) in this action involving alleged violations of Health and Safety Code section 25249.6 et seq. (Proposition 65) is unopposed and is granted.

The Consent Judgment resolves Held’s allegations that RV Designer manufactures, imports, sells, and/or distributes for sale in California vinyl/PVC seat covers containing the plasticizer and Proposition 65-listed chemical, di(2-ethylhexyl)phthalate (DEHP), hereinafter the “Products,” without first providing the health hazard warning required by Proposition 65. A true and correct copy of the Consent Judgment is attached as Exhibit A to the supporting declaration of Laralei S. Paras (Paras Decl) DEHP is listed pursuant to Proposition 65 as a chemical known to cause birth defects or other reproductive harm.

On November 20, 2017, Held served RV Designer with a 60-Day Notice of Violation (Notice), alleging that individuals in California were being exposed to DEHP from the Products sold by RV Designer without first receiving a clear and reasonable warning in violation of Proposition 65. (Paras Decl. ¶ 5.) On April 9, 2018, more than sixty days after service of the Notice, with no public enforcer having elected to enforce the violations alleged in the Notice, Held filed the instant action. (Paras Decl. ¶ 6.) On or about January 10, 2019, the parties finalized and mutually executed the Consent Judgment. The Settlement resolves all of the claims alleged in the Notice and Complaint, and provides a properly tailored release. (Paras Decl. ¶ 7.) The Court finds that based on the evidence submitted with this motion, the Settlement meets the requirements of Proposition 65, is fair and reasonable, and promotes the public interest. Among other things, it requires RV Designer to pay civil penalties to compensate the public for its alleged past violations, reformulate the Products to reduce or eliminate the presence of DEHP and prevent the other listed phthalate chemicals from being used as replacement plasticizers. In addition, the products will provide interim clear and reasonable health hazard warnings.

Proposition 65 may be enforced by public prosecutors, including the Attorney General, district attorneys, and certain city attorneys, or by private individuals or organizations acting “in the public interest.” To initiate a Proposition 65 enforcement action in the public interest, a private enforcer must first give notice to the alleged violator and certain public enforcers, and allow more than sixty days to pass with no public enforcer having elected to prosecute the alleged violations. (Health & Saf Code, § 25249.7, subds. (c) & (d).) The act provides statutory penalties of up to twenty-five hundred dollars ($2,500) per day for each violation. The majority, seventy-five percent (75%) of the penalty is paid to the State of California for deposit in the Safe Drinking Water and Toxic Enforcement Fund, a fund administered by the California Office of Environmental Health Hazard Assessment (OEHHA). (Health & Saf Code, § 25249.12, subd. (c), par.

(1).) The private enforcer retains the remaining twenty-five percent (25%) of any penalty paid. (Health & Saf Code, §§ 25249.7, subd. (b) «& 25249.12, subd. (d).)

Health and Safety Code section 25249.7 subdivision (f)(4) requires judicial approval of Proposition 65 settlements between private parties in a Proposition 65 enforcement action. To approve the Settlement, the Court must find that: (1) the warning or other injunctive relief required by the Settlement complies with Proposition 65; (2) the attorneys’ fees and costs provided by the Settlement are reasonable under California law; and (3) the amount paid in civil penalties is reasonable based on the criteria set forth in Health and Safety Code section 25249.7 subdivision (b)(2)

Attorneys Fees

Where the actions of citizen enforcers in noticing and bringing Proposition 65 actions cause a defendant to comply with, or exceed, the requirements of the law, such citizen enforcers confer a substantial public benefit and are entitled to recover their attorneys’ fees pursuant to Code of Civil Procedure section 1021.5. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560-61.) In enacting section 1021.5, the California Legislature recognized that “privately initiated lawsuits are often essential to the effectuation of the fundamental public policies embodied in constitutional or statutory provisions, and that, without some mechanism authorizing the award of attorney fees, private actions to enforce such important public policies will as a practical matter frequently be infeasible.” (WoodlandHills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 917, 933.

The Court finds that the requested $27,500 for the attorneys’ fees and litigation costs incurred in this action are reasonable. (Paras Decl. ¶ 17.) The parties reached this agreement in accordance with general contract principles and the private attorney general doctrine codified at Code of Civil Procedure section 1021.5. The negotiated reimbursement represents a compromise of over
50% of the fees and costs Held actually incurred by the investigation, litigation, and other enforcement-related activity required by this case. (Id.) The negotiate fee agreement is supported by the declaration of Paras and provides evidence to support the finding that the negotiated fee and cost reimbursement is reasonable. It shows that the fees and costs incurred in this matter exceed $65,000 after counsel’s exercise and application of billing judgment. (Paras Decl. ¶ 18; Exh. B.)

Here, the Consent Judgment provides for either reformulation of the Products so that they contain no more than 1,000 ppm of not only DEHP, but also the other phthalate chemicals listed by the State of California as known to cause cancer and other reproductive harm, namely, BBP, DBP, DIDP, DINP, and DnHP. In addition, the Consent Judgment provides for the interim placement of clear and reasonable health hazard warnings. Accordingly, Held maintains that he created a change in the seller’s behavior, and, thereby, the marketplace which confers a significant benefit to the public.

The Court will sign the proposed formal order.

The notice of motion does not provide notice of the Court’s tentative ruling system, as required by Local Rule 1.06(D). Counsel for moving party is directed to contact counsel for opposing party forthwith and advise counsel of Local Rule 1.06 and the Court’s tentative ruling procedure. If counsel for moving party is unable to contact counsel for opposing party prior to hearing, counsel for moving party shall be available at the hearing, in person or by telephone, in the event opposing party appears without following the procedures set forth in Local Rule 1.06(B).