This case was last updated from Los Angeles County Superior Courts on 04/14/2022 at 19:05:40 (UTC).

CONSUMER ADVOCACY GROUP INC VS VALU MART CO

Case Summary

On 10/10/2017 CONSUMER ADVOCACY GROUP INC filed a Personal Injury - Other Personal Injury lawsuit against VALU MART CO. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are LAURA A. SEIGLE and TERESA A. BEAUDET. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****9776

  • Filing Date:

    10/10/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

LAURA A. SEIGLE

TERESA A. BEAUDET

 

Party Details

Plaintiff

CONSUMER ADVOCACY GROUP INC.

Defendants

K. V. MART CO.

BUY LOW MARKET CORP.

MERCADO LATINO INC.

ROYAL DELUXE ACCESSORIES LLC

SOOFER CO. INC.

VALU MART CO.

ROYAL ITEMS INC.

YEROUSHALMI & YEROUSHALMI

YEROUSHALMI REUBEN

Attorney/Law Firm Details

Plaintiff Attorneys

PARKER DAVID BRUCE

RALIDIS KENNETH WILLIAM

YEROUSHALMI REUBEN

Defendant Attorneys

BROPHY CAROL

CORTEZ ANTHONY J.

OSMAN JOEL A.

SMITH CHRISTOPHER W.

STILES MICHAEL J.

WEISSENBERGER EMILY

 

Court Documents

Ex Parte Application - EX PARTE APPLICATION DEFENDANT SOOFER COMPANY INC.'S EX PARTE APPLICATION FOR 1. ORDER IMPOSING SANCTIONS AGAINST PLAINTIFF AND OR ITS COUNSEL FOR VIOLATING CMO; AND ORDER CONTI

9/23/2021: Ex Parte Application - EX PARTE APPLICATION DEFENDANT SOOFER COMPANY INC.'S EX PARTE APPLICATION FOR 1. ORDER IMPOSING SANCTIONS AGAINST PLAINTIFF AND OR ITS COUNSEL FOR VIOLATING CMO; AND ORDER CONTI

Opposition - OPPOSITION PLAINTIFF CAGS PARTIAL OPPOSITION TO EX PARTE APPLICATION FOR: 1) ORDER IMPOSING SANC- TIONS AGAINST PLAINTIFF AND/OR ITS COUNSEL FOR VIOLATING CMO OPPOSED BY CAG; AND 2) OR

9/23/2021: Opposition - OPPOSITION PLAINTIFF CAGS PARTIAL OPPOSITION TO EX PARTE APPLICATION FOR: 1) ORDER IMPOSING SANC- TIONS AGAINST PLAINTIFF AND/OR ITS COUNSEL FOR VIOLATING CMO OPPOSED BY CAG; AND 2) OR

Notice - NOTICE OF ASSOCIATION

9/17/2021: Notice - NOTICE OF ASSOCIATION

Notice - Notice OF RULING

10/30/2018: Notice - Notice OF RULING

Minute Order - MINUTE ORDER (COURT ORDER RE: RESCHEDULING OF EX PARTE APPLICATION)

2/16/2022: Minute Order - MINUTE ORDER (COURT ORDER RE: RESCHEDULING OF EX PARTE APPLICATION)

Ex Parte Application - EX PARTE APPLICATION JOINT EX PARTE REQUEST TO CONTINUE TRIAL

2/16/2022: Ex Parte Application - EX PARTE APPLICATION JOINT EX PARTE REQUEST TO CONTINUE TRIAL

Notice - NOTICE OF RESCHEDULING OF JOINT EX PARTE APPLICATION

2/17/2022: Notice - NOTICE OF RESCHEDULING OF JOINT EX PARTE APPLICATION

Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION REQUEST TO CONTINUE TRIAL)

2/23/2022: Minute Order - MINUTE ORDER (HEARING ON EX PARTE APPLICATION REQUEST TO CONTINUE TRIAL)

Motion in Limine - MOTION IN LIMINE NUMBER 1 FOR AN ORDER TO PRECLUDE TESTIMONY OF PLAINTIFFS EXPERTS NOT PRODUCED FOR DEPOSITION ANDOR COMPLETED

2/25/2022: Motion in Limine - MOTION IN LIMINE NUMBER 1 FOR AN ORDER TO PRECLUDE TESTIMONY OF PLAINTIFFS EXPERTS NOT PRODUCED FOR DEPOSITION ANDOR COMPLETED

Request for Judicial Notice

2/25/2022: Request for Judicial Notice

Declaration - DECLARATION OF DENNIS E. RAGLIN IN SUPPORT OF DEFENDANT SOOFER COMPANY, INC.S MOTIONS IN LIMINE NUMBERS 1 THROUGH 10

2/25/2022: Declaration - DECLARATION OF DENNIS E. RAGLIN IN SUPPORT OF DEFENDANT SOOFER COMPANY, INC.S MOTIONS IN LIMINE NUMBERS 1 THROUGH 10

Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 8 FOR AN ORDER TO PRECLUDE: (1) PLAINTIFF FROM OFFERING EXPERT TESTIMONY REGARDING CONSUMPTION OF GINGER AS

2/25/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 8 FOR AN ORDER TO PRECLUDE: (1) PLAINTIFF FROM OFFERING EXPERT TESTIMONY REGARDING CONSUMPTION OF GINGER AS

Motion in Limine - MOTION IN LIMINE DEFENDANT SOOFER COMPANY, INC.S NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 7 TO PRECLUDE TESTIMONY PERTAINING TO ANY AND ALL HEALTH EFFECT ENDPOINTS OTHER THAN CA

2/25/2022: Motion in Limine - MOTION IN LIMINE DEFENDANT SOOFER COMPANY, INC.S NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 7 TO PRECLUDE TESTIMONY PERTAINING TO ANY AND ALL HEALTH EFFECT ENDPOINTS OTHER THAN CA

Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 6 FOR AN ORDER TO EXCLUDE EXPERT OPINIONS BASED ON FACTS N FIGURES, INC.S SURVEYS

2/25/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 6 FOR AN ORDER TO EXCLUDE EXPERT OPINIONS BASED ON FACTS N FIGURES, INC.S SURVEYS

Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 5 FOR AN ORDER TO EXCLUDE: (1) PLAINTIFFS EXPERT TESTIMONY THAT FATSECRET AND DR. DAMIANS INTERNET RECIPE AN

2/25/2022: Motion in Limine - MOTION IN LIMINE DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 5 FOR AN ORDER TO EXCLUDE: (1) PLAINTIFFS EXPERT TESTIMONY THAT FATSECRET AND DR. DAMIANS INTERNET RECIPE AN

Motion in Limine - MOTION IN LIMINE 2 PROPOSITION 65 WARNINGS SHOULD BE GIVEN

2/25/2022: Motion in Limine - MOTION IN LIMINE 2 PROPOSITION 65 WARNINGS SHOULD BE GIVEN

Motion in Limine - MOTION IN LIMINE 3 NO EVIDENCE SPICES MUST HAVE LEAD

2/25/2022: Motion in Limine - MOTION IN LIMINE 3 NO EVIDENCE SPICES MUST HAVE LEAD

Motion in Limine - MOTION IN LIMINE DEFENDANT SOOFER COMPANY, INC.S NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 10 (1) FOR A FINDING, AS A MATTER OF LAW, THAT 27 CCR 25821(C)(2) APPLIES TO PROPOSITI

2/25/2022: Motion in Limine - MOTION IN LIMINE DEFENDANT SOOFER COMPANY, INC.S NOTICE OF MOTION AND MOTION IN LIMINE NUMBER 10 (1) FOR A FINDING, AS A MATTER OF LAW, THAT 27 CCR 25821(C)(2) APPLIES TO PROPOSITI

591 More Documents Available

 

Docket Entries

  • 04/18/2022
  • Hearing04/18/2022 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Non-Jury Trial

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  • 04/18/2022
  • Hearing04/18/2022 at 08:30 AM in Department 48 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 04/13/2022
  • DocketTrial Brief (PLAINTIFF CONSUMER ADVOCACY GROUP, INC.?S PHASE II TRIAL BRIEF; DECLARATION OF K. RALIDIS AND EXHIBITS); Filed by Consumer Advocacy Group, Inc. (Plaintiff)

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  • 04/04/2022
  • Docketat 10:00 AM in Department 48, Laura A. Seigle, Presiding; Non-Jury Trial ((15-Day Estimate)) - Not Held - Advanced and Continued - by Court

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  • 03/23/2022
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Final Status Conference - Not Held - Advanced and Continued - by Court

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  • 03/23/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 03/23/2022
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore; Filed by Soofer Co., Inc. (Defendant)

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  • 03/21/2022
  • Docketat 08:30 AM in Department 48, Laura A. Seigle, Presiding; Final Status Conference - Held - Continued

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  • 03/21/2022
  • DocketMinute Order ( (Final Status Conference)); Filed by Clerk

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  • 03/21/2022
  • DocketOrder Appointing Court Approved Reporter as Official Reporter Pro Tempore ((Suzanne Onuki, CSR #13734)); Filed by Soofer Co., Inc. (Defendant)

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882 More Docket Entries
  • 11/16/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 11/16/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 10/23/2017
  • Docketat 00:00 AM in Department 15; Unknown Event Type - Held - Motion Granted

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  • 10/23/2017
  • DocketMinute Order

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  • 10/23/2017
  • DocketMinute order entered: 2017-10-23 00:00:00; Filed by Clerk

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  • 10/19/2017
  • DocketPEREMPTORY CHALLENGE TO JUDICIAL OFFICER

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  • 10/10/2017
  • DocketSUMMONS

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  • 10/10/2017
  • DocketCOMPLAINT FOR PENALTY AND INJUNCTION

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  • 10/10/2017
  • DocketComplaint; Filed by Consumer Advocacy Group, Inc. (Plaintiff)

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  • 10/10/2017
  • DocketSummons; Filed by Plaintiff/Petitioner

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Tentative Rulings

Case Number: ****9776    Hearing Date: May 21, 2021    Dept: 48

[TENTATIVE] ORDER RE: DEFENDANT’S MOTION FOR SUMMARY ADJUDICATION

On February 2, 2018, Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed a first amended complaint (“FAC”) against Defendant Soofer Co., Inc. (“Defendant”) and others for violations of Proposition 65. On December 24, 2020, Defendant filed a motion for summary adjudication of the fourth through seventh causes of action.

EVIDENTIARY OBJECTIONS

The parties filed fifteen declaration and several thousand pages of exhibits. Much of the evidence involved issues not material to this decision. Plaintiff filed thirty pages of objections to evidence and did not number the objections, making it extremely difficult to track them. Also Plaintiff’s objections are filled with argument in violation of the rules on the format of objections. Likewise Defendants did not number their fifty-two pages of objections.

The Court tried to address the objections to the material evidence in the discussion below. If an objection is not addressed, it is overruled or was not an objection to the evidence necessary to this decision. If an important objection is not addressed below, counsel should identify the specific objection at the hearing for the Court to rule on.

REQUESTS FOR JUDICIAL NOTICE

Defendant’s Request Nos. 1, 2, and 8 are denied, as trial court orders in other cases are not relevant to this action. Request Nos. 3-7 are granted. Defendant’s Requests in support of its reply are granted.

Plaintiff’s Request Nos. 1-2 are denied, as orders and tests in other cases are not relevant to this action. Request No. 3 is granted, but the Court does not take notice of the truth of the contents of the documents. Request Nos. 4-15 are granted.

DISCUSSION

Defendant moves for summary adjudication on the ground that the ginger powder (fourth cause of action), whole ginger (fifth cause of action), ground clove (sixth cause of action), and ground anise (seventh cause of action) do not cause lead exposures requiring warnings under Proposition 65. The Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65, was passed as a ballot initiative by the California voters, and was designed to prevent the contamination of drinking water with, and generally protect the public from unknowing exposure to, harmful chemicals. (See generally 12 Witkin, Summary of California Law 10th (2005) Real Property, ; 894, p. 1075.) Under Proposition 65, “[n]o 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.) No warning is required for exposure that poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer and has no observable effect assuming exposure at 1000 times the level in question for substances known to the state to cause reproductive toxicity. (Health & Saf. Code, ; 25249.10, subd. (c).) “[T]he burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.” (Ibid.)

For lead, the California Office of Environmental Health Hazard Assessment established that exposure to 15 micrograms per day (15 µg/day) poses no significant risk of cancer, and exposure to 0.5 micrograms per day (0.5 µg/day) has no observable effect on causing reproductive toxicity. (Cal. Code Regs., tit. 27, ;; 25705, subd. (b)(1), 25805, subd. (b).) Because the safe harbor exposure level for reproductive toxicity is lower than the level for cancer, Defendant addresses the products’ levels only with respect to the more restrictive reproductive toxicity safe harbor. (Motion at pp. 6-7.)

The level of exposure to a chemical is determined by multiplying the level in question by the reasonably anticipated rate of exposure for an individual to a given medium. (Cal. Code Regs., tit. 27, ; 25821, subd. (b).) The reasonably anticipated rate of exposure is based on “the pattern and duration of exposure that is relevant to the reproductive effect which provided the basis for the determination that a chemical is known to the state to cause reproductive toxicity.” (Ibid.) For consumer productions, the level of exposure is calculated using “the reasonably anticipated rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population. The rate of intake or exposure shall be based on data for use of a general category or categories of consumer products, such as the United States Department of Agriculture Home Economic Research Report, Foods Commonly Eaten by Individuals: Amount Per Day and Per Eating Occasion, where such data are available.” (Cal. Code Regs., tit. 27, ; 25821, subd. (c)(2).)

Defense expert Dr. Barbara Petersen evaluated each spice and compiled data from test results produced by Plaintiff and Defendant. (Motion at p. 9; Petersen Decl. ¶¶ 17-18.) Petersen calculated the geometric and arithmetic means of the lead levels in the spices. (Petersen Decl. ¶ 18.) When evaluating the amount of each spice consumed in a day she concluded that the What We Eat in America (“WWEIA”) component of the U.S. Center for Disease Control and Prevention National Center for Health Statistics’ National Health & Nutrition Examination Survey (“NHANES”) consumption data is the most reliable data publicly available. (Id. at ¶ 20.) This data is designed to be representative of the entire U.S. population’s food consumption patterns and captures how often foods are consumed. (Ibid.) Petersen used the 2013-2014 and 2015-2016 records collected in the WWEIA component of NHANES. (Id. at ¶ 22.) The spices are almost exclusively consumed as an ingredient or component of foods, so she used the United States Department of Agriculture’s Food and Nutrient Database for Dietary Studies (“FNDDS”) to translate NHANES food as consumed into its corresponding ingredients (and gram amounts) or recipes to identify foods reported consumed that contained each of the four spices. (Id. at ¶ 23.) Because the FNDDS recipe database does not comprehensively capture all foods or spices, Petersen made additional assumptions to conservatively estimate intake. (Id. at ¶¶ 24-25.) She then generated the arithmetic and geometric mean amount of each spice in grams per eating occasion. (Id. at ¶ 26.) Petersen used the NPD Group’s National Eating Trends (“NET”), a national survey, to generate the arithmetic and geometric means of the long-term frequency of consumption of each spice. (Id. at ¶¶ 27, 32; see id. at ¶¶ 28-31.) She calculated the average consumer’s usual intake of each spice (in grams/day) by multiplying the amount consumed per eating occasion by the average number of eating occasions per day. (Id. at ¶ 33.) Finally, she estimated the arithmetic and geometric mean lead intake by consumers of each spice by multiplying the average consumer’s usual intake of the space (in grams/day) by the average lead level in the spice (in ppm; microgram lead/gram). (Id. at ¶ 35.)

Peterson determined the following daily intakes of lead for the average user: 0.01 micrograms (using geometric mean) or 0.002 micrograms (using arithmetic mean) from ground anise; 0.01 micrograms (using geometric mean) or 0.003 micrograms (using arithmetic mean) from ground cloves; 0.03 micrograms (using geometric mean) or 0.01 micrograms (using arithmetic mean) from ground ginger; and 0.12 micrograms (using geometric mean) or 0.05 micrograms (using arithmetic mean) from whole ginger. (Id. at ¶ 36.) She therefore concluded that the levels of exposure to lead from these spices is below the Proposition 65 warning thresholds. (Id. at ¶¶ 38-40.) Additionally, Defense expert Dr. Barbara Beck explains that it is appropriate to evaluate lead exposure over a period of time such as 30 days or more. (Beck Decl. ¶¶ 25-33.) Defendant has satisfied its burden.

In opposition, Plaintiff argues that the averaging time for lead exposure should be one day, not 14 or 30 days. (Opposition at p. 9.) Plaintiff’s expert Dr. Paul Damian declares that long-term averages are inappropriate when evaluating the potential for short-term fetal developmental effects because such averaging would mask potentially adverse spikes in lead exposure occurring on a given day or just a few days. (Damian Decl. ¶ 15.) Damian cites a March 3, 2008 letter from the California Attorney General that states, “For a reproductive toxicant such as lead, the usage on a given day is considered the appropriate measure of exposure, not the long-term daily average.” (Id. at ¶ 18.) One study found that a few micrograms of blood lead exposure at 28 weeks gestation could cause lasting and possibly permanent effects to a fetus’s intellectual development. (Id. at ¶ 20.) Therefore, the “window of susceptibility” for fetal exposure to lead may be one week or shorter. (Id. at ¶¶ 20-22.) Dr. Damian also states that a one-day averaging period for lead is consistent with OEHHA Proposition 65 interpretive guidelines. (Id. at ¶ 23.) This testimony shows a triable issue on the length of exposure to be used in the analysis.

Defendant argues that Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307 (Beech-Nut) considered and rejected the one-day exposure theory. (Motion at pp. 11, 15-16, 18; Reply at pp. 4-5.) Beech-Nut considered the Proposition 65 labeling requirements for “foods intended predominantly or exclusively for babies and toddlers, such as baby foods, fruit juice, and packaged peaches, pears, and fruit cups.” (Beech-Nut, supra, 235 Cal.App.4th at p. 314.) Following a bench trial, the trial court found the defendants’ expert testimony and analysis were more persuasive than the plaintiff’s evidence. (Id. at p. 322.) On appeal, the plaintiff argued that the defendants’ safe harbor defense failed because defendants had not evaluated whether short-term exposure to higher levels of lead was capable of causing harm. (Id. at p. 328.) The court held that substantial evidence supported the conclusion that the products were eaten no more frequently than four times per months, and experts on both sides agreed that eight weeks was the shortest period during which an exposure to lead at those levels would be expected to have an adverse reproductive effect. (Ibid.)

Defendant asserts that the court in Beech-Nut decided that “averaging over time is necessary and appropriate” and specifically rejected Plaintiff’s “single day theory of exposure.” (Motion at p. 11, 16 n.18.) If Defendant is contending that in Beech-Nut, the Court of Appeal held as a matter of law that a single-day theory of exposure has no merit and a proper analysis requires averaging over time, that contention is based on a misreading of the decision. The decision in Beech-Nut held that the trial court did not error in concluding the evidence supported the defendants’ position: “In sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense . . . .” (Beech-Nut, supra, 235 Cal.App.4th at p. 329.) This holding is qualified, as shown by the use of the phrase “on the record here.” Specifically regarding the length of exposure, the court stated “substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time” and that it was not erroneous to not “evaluate whether short-term exposure to higher levels of lead is capable of causing harm.” (Id. at p. 327.) These statement were case-specific and not the types of precedential legal rules that Defendant would draw from the decision.

On a motion for summary adjudication, unlike in the bench trial in Beech-Nut, the trial court does not decide weigh the evidence and decide whether the evidence supports a one side over the other. (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840.) In sum, the decision in Beech-Nut, a different case presenting different facts in a different procedural posture, does not dictate the result of this motion.

Defendant objections to Damian’s testimony on various grounds. On summary judgment, the court inquires into the reasons and foundation for an expert’s opinion as part of its gatekeeping function but does not choose between competing expert opinions. (Sargon Enterprises, Inc. v. University of Southern California (2012) 55 Cal.4th 747, 772.) “The trial court’s preliminary determination whether the expert opinion is founded on sound logic is not a decision on its persuasiveness. The court must not weigh an opinion’s probative value or substitute its own opinion for the expert’s opinion.” (Ibid.)

Defendant objects to Damian’s testimony as inconsistent with statements he made in other situations. (Reply at pp. 1, 17.) The Court cannot determine in the context of this motion that Damian’s declaration is inconsistent with or contradicts other statements he made in other cases or forums. For example, the Court has no legal basis to concluded that because Damian used a particular approach for exposure from lead in soil (Beck Decl., ¶ 49), his approach here regarding lead in spices is inconsistent and therefore must be excluded. In any event, Defendant does not cite legal authority that because an expert took an inconsistent position in a prior case, his testimony is inadmissible. Inconsistent or contradictory statements go to the weight to be given his analysis and to his credibility, which is for the trier of fact.

Defendant objects to Damian’s analysis is not persuasive. For example, Beck testifies that his “use of the literature is selective” because he only relies on two studies and the conclusions he takes from the studies are wrong. (See, e.g., Beck Decl., ¶¶ 22, 23.) The Court cannot decide on summary judgment that one expert’s analysis is correct and the other’s is incorrect.

Defendant objects that Damian relies on hearsay, internet searches, and popular press, which are not credible sources, and therefore his testimony should be excluded. (Reply at p. 16.) The Court does not rely on those portions Damian’s testimony for this decision. However, information from the Internet is not inherently unreliable or automatically inadmissible. (See, e.g., People v. Veamatahau (2020) 9 Cal.5th 16, 27 [hearsay from Internet database was “the kind of background information experts have traditionally been able to rely on and relate to the jury”].)

While issues Defendant raises concerning Damian’s analysis may have merit, they are the type of issues to be raised at a trial in arguing that the trier of fact should accept the defense experts’ conclusions rather than Damian’s. Because Plaintiff has shown the existence of triable issue concerning exposure, summary adjudication is denied.

CONCLUSION

The motion for summary adjudication is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****9776    Hearing Date: January 13, 2021    Dept: 48

ORDER RE MOTION TO CONTINUE PRE-TRIAL DATES

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) seeks to continue pretrial dates.

On August 21, 2020, the parties jointly filed a proposed Case Management Order for Phase 2 with agreed-upon pre-trial deadlines and a trial date. The Court adopted the parties’ proposed dates with slight adjustments of the trial and final status conference dates.

On September 29, 2020, the Court granted a motion to disqualify Plaintiff’s counsel. According to Plaintiff, new counsel began representing Plaintiff on or about October 1, 2020. (Motion at p. 1.)

On October 1, 2020, the Court signed the parties’ Case Management Order for Phase 2.

Plaintiff argues that with new counsel, the pre-trial dates in the Case Management Order need to be continued so that the new counsel can become familiar with the case and can take discovery. Plaintiff’s motion did not provide sufficient information about the discovery that still needs to take place and why it cannot be completed before the current dates.

Therefore, the Court continues the hearing on this motion to January 29, 2021 at 8:30 a.m. By January 19, 2021, Plaintiff is to submit a brief of no more than five pages specifically identifying (1) the discovery that has taken place since August 21, 2020 when the parties submitted the proposed Case Management Order, (2) the remaining specific written discovery and depositions that are not yet completed, (3) when the remaining written discovery will be propounded and responded to, (4) agreed-upon dates for depositions, (5) an explanation why the remaining written discovery has not yet been propounded or responded to, and (6) an explanation why the remaining depositions have not taken place or have not yet been scheduled. By January 26, 2021, Defendants may file a responding brief of no more than five pages.



Case Number: ****9776    Hearing Date: October 07, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO BE RELIEVED AS COUNSEL

Emily M. Weissenberger and Shook, Hardy & Bacon, counsel of record for Defendants Buy-Low Market, Valu Mart, and KV Mart, seek to be relieved as counsel on the grounds that Defendants failed to communicate with counsel despite continual attempts, failed to timely provide information requested to prepare a defense, and failed to pay.

Absent a showing of resulting prejudice, an attorney’s request for withdrawal should be granted. (People v. Prince (1968) 268 Cal.App.2d 398, 406.) Counsel’s motion complies with California Rules of Court, Rule 3.1362. Trial is not until July 12, 2021, so no prejudice will result from granting the motion. Accordingly, the unopposed motion to be relieved is GRANTED and effective upon filing a proof of service showing service of the order on Buy-Low Market, Valu Mart, KV Mart, and all parties who have appeared.

However, “a corporation cannot represent itself in a court of record either in propria persona or through an officer or agent who is not an attorney.” (Caressa Camille, Inc. v. Alcoholic Beverage Control Appeals Bd. (2002) 99 Cal.App.4th 1094, 1101.) Therefore, an Order to Show Cause Re: Failure to Retain New Counsel is scheduled for December 8, 2020 at 10:00 a.m. in Department 48 at Stanley Mosk Courthouse. Defendants Buy-Low Market, Valu Mart, and KV Mart must retain new counsel by that date.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****9776    Hearing Date: October 01, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION FOR TERMINATING SANCTIONS

On February 2, 2018, Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed its first amended complaint (“FAC”) alleging that Defendant Soofer Company, Inc. (“Defendant”) and others violated Proposition 65 through their manufacture, distribution, promotion, or sale of ginger powder, whole ginger, ground clove, and ground anise. On August 12, 2020, Defendant filed this motion for terminating sanctions seeking dismissal of the action with prejudice.

REQUEST FOR JUDICIAL NOTICE

Defendant requests that the Court take judicial notice of 15 items. The Court grants the requests.

EVIDENTIARY OBJECTIONS

Plaintiff’s objections to the Declaration of Dariush Soofer and its exhibits are overruled. Plaintiff’s objections to the Declaration of Amanda Soofer and its exhibits are overruled. Plaintiff’s objections to the Declaration of Carol Brophy are overruled. Plaintiff’s objections to the motion and reply brief are overruled.

Defendant’s objections to Plaintiff’s Opposition are overruled. Defendant’s objections to the Declaration of Reuben Yeroushlami and its exhibit are overruled. Defendant’s Objection Nos. 1-11 and Exhibits A-D, K, L to the Declaration of Michael Marcus are overruled. Defendant’s Objection Nos. 12-14 and Exhibits I-J to the Declaration of Michael Marcus are sustained. The Court did not rely on Plaintiff’s Declaration of Robert Kehr.

Objections to briefs are not proper, exacerbates the large number of filings, and creates inefficiencies as it requires the Court to spend time on improper objections. Objections are to be made to evidence. (See Cal. Rule of Court rule 3.1354.) Parties should use arguments in their opposition and reply briefs to express their disagreement with the arguments in the other side’s briefs.

DISCUSSION

As an initial matter, at the prior hearing, the Court asked whether the hearing on this motion should be continued to allow the Attorney General to be heard on the motion, as occurred in the Rice Litigation. Plaintiff and Defendant agreed that that was not necessary.

Defendant seeks dismissal pursuant to the analysis and holding in Stephen Slesinger, Inc. v. Walt Disney Co. (2007) 155 Cal.App.4th 736 (Slesinger).) “[W]hen the plaintiff has engaged in misconduct during the course of the litigation that is deliberate, that is egregious, and that renders any remedy short of dismissal inadequate to preserve the fairness of the trial, the trial court has the inherent power to dismiss the action.” (Slesinger, supra, 155 Cal.App.4th at p. 764.) “The decision whether to exercise the inherent power to dismiss requires consideration of all relevant circumstances, including the nature of the misconduct (which must be deliberate and egregious, but may or may not violate a prior court order), the strong preference for adjudicating claims on the merits, the integrity of the court as an institution of justice, the effect of the misconduct on a fair resolution of the case, and the availability of other sanctions to cure the harm.” (Ibid.)

Defendant seeks dismissal of this action with prejudice due to a consulting arrangement between Defendant and Reuben Yeroushalmi and his firm Yeroushalmi & Yeroushalmi, LLP (collectively “Yeroushalmi”), memorialized in a Memorandum of Understanding (“MOU”). (Motion at p. 10.) The Court already discussed and ruled on issues surrounding the MOU in its order granting the motion to disqualify Yeroushalmi and incorporates that discussion and those rulings here.

Defendant argues that the MOU is an admission of improper concurrent representation by Yeroushalmi,, which is grounds for terminating sanctions. (Motion at pp. 10-11.) In addition, Defendant argues: the MOU’s consultant provision improperly converted the settlement’s Proposition 65 enforcement fees, 75 percent of which must be provided to the state’s Office of Environmental Health Hazard assessment, into consulting fees for Yeroushalmi (id. at p. 11); the MOU allowed Yeroushalmi to establish injunctive provisions unilaterally and to keep them secret because the MOU permitted Yeroushalmi to establish permissible levels of lead in Defendant’s products that would not trigger Proposition 65, avoiding public disclosure (id. at pp. 11-12); the MOU was an improper “protection for hire scheme on behalf of Yeroushalmi, in which [Plaintiff] was a willing and crucial participant” (id. at p. 12); the MOU is impermissibly overbroad, covering spice that were not withing Plaintiff’s two Proposition 65 notices, and violates the law and public policy (id. at p. 12); and the MOU is “part of both Yeroushalmi’s and [Plaintiff’s] pattern and practice to shut the Attorney General and the Court out of their statutorily required Proposition 65 oversight functions.” (Id. at p. 13.) According to Defendant, this conduct necessitates terminating sanctions.

The complained-of conduct primarily concerns Yeroushalmi as Plaintiff’s attorney. The evidence of Plaintiff’s involvement is Michael Marcus’ signature on the MOU as CEO of Plaintiff. The only time representatives of Plaintiff, apart from Yeroushalmi, met with Defendant was on November 18, 2015, long before the MOU. (D. Soofer Decl. ¶ 12; A. Soofer Decl. ¶ 13; Marcus Decl. ¶ 17.) At that time the parties were discussing a tolling agreement and settlement, and there is no evidence the topic of the MOU or Yeroushalmi’s consulting services had arisen. (D. Soofer Decl. ¶¶ 12-14.) The wrongful aspects of the MOU about which Defendant complains benefited Yeroushalmi as the intended recipient of the $125,000 in consulting fees, but not Plaintiff nearly as much if at all. The evidence is slim that Plaintiff was involved directly (as opposed to through Yeroushalmi) in developing the strategy that resulted in the MOU, negotiating the MOU, drafting the MOU, or providing the consulting services described in the MOU. The Court cannot conclude that the MOU proves Plaintiff engaged in the type of egregious and deliberate conduct justifying termination.

Defendant also contends that Plaintiff is not litigating this matter in the public interest but rather for its own financial benefit, and therefore does not have standing to prosecute a Proposition 65 violation. (Motion at p. 13.) A plaintiff may bring an action based on Proposition 65 only in the public interest, as the statutory scheme is “intended to create a mechanism for vindicating public rights.” (Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, 692-693; see Health & Saf. Code, ; 25249.7.) According to Defendant, the MOU is evidence that Plaintiff needed quick cash and settled the Rice Litigation and spice dispute to get that cash. (Motion at p. 14.) But there is insufficient evidence that Plaintiff was planning on pocketing $125,000 or $250,000 without obtaining a consent judgment in the Rice Litigation, or that Plaintiff was going to keep the $125,000 in consulting fees that were to be paid to Yeroushalmi.

Finally, Defendant argues that because Plaintiff obtained Defendant’s confidential information, no sanction less than termination will be effective. (Motion at p. 15.) Defendant cites to paragraph 13 of the Amanda Soofer Declaration as evidence that Plaintiff obtained Defendant’s confidential information. That paragraph only mentions a November 18, 2015 meeting at which Plaintiff’s CEO, Marcus, was present. The declaration does not state Defendant transmitted confidential information to Plaintiff. Defendant does not cite evidence substantiating its contention that Plaintiff received Defendant’s confidential information, and there is insufficient evidence that Yeroushalmi transmitted Defendant’s confidential information to Plaintiff. Therefore, this is not a situation where, even with the disqualification of Yroushalmi, Plaintiff will have the unfair advantage in the continued litigation of access to Defendant’s confidential information.

In its submission in the Rice Litigation, the Attorney General stated that Plaintiff violated Proposition 65 reporting requirements when it did not report the MOU settlement within five days. Defendant does not cite legal authority that such a violation is grounds for terminating sanctions.

In its reply, Defendant argues that terminating sanctions will prevent Defendant from having to spend hundreds of thousands of dollars to prove that a warning is not required on the spice products. Defendant states the products are safe and Defendant has an ongoing obligation to comply with Proposition 65. Saving a defendant from spending litigation costs is not a basis for terminating sanctions. Many defendants will think their products are safe and should not be required to carry warnings, and many defendants will insist that they will comply with the law. The Court cannot conclude as a matter of law, and without sufficient evidence as to the merits of the case, that Defendant is in compliance with the applicable state and federal regulations and that no Proposition 65 warning is warranted. A motion for terminating sanctions is not a mechanism for ruling on the merits in that fashion. And the fact that Defendant believes it has not violated Proposition 65 is not grounds to terminate the litigation.

Plaintiff’s FAC alleges that Defendant and others knowingly and intentionally exposed consumers to lead without providing a clear and reasonable warning. (SAC ¶¶ 72, 82, 92, 102.) Plaintiff seeks, in part, a permanent injunction mandating Proposition 65-compliant warning and statutory penalties. The Court cannot conclude as a matter of law that if Plaintiff proves its allegations and obtains the requested relief, the public will not benefit. Defendant has not shown by sufficient evidence that Plaintiff is unable to continue this action for the public benefit. Nor did Defendant show that the integrity of the court as an institution of justice requires terminating sanctions.

Defendant did not suggest other sanctions to cure the harm. The disqualification of Yeroushalmi can be considered another sanction.

CONCLUSION

Accordingly, the motion for terminating sanctions is DENIED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****9776    Hearing Date: September 25, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO DISQUALIFY PLAINTIFF’S COUNSEL

On February 2, 2018, Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed its first amended complaint (“FAC”). The FAC alleges that Defendant Soofer Company, Inc. (“Defendant”) and others violated Proposition 65 through their manufacture, distribution, promotion, or sale of ginger powder, whole ginger, ground clove, and ground anise. Defendant seeks to disqualify Reuben Yeroushalmi and the law firm Yeroushalmi & Yeroushalmi (collectively “Yeroushalmi”) as Plaintiff’s counsel.

REQUEST FOR JUDICIAL NOTICE

Defendant requests that the Court take judicial notice of 10 items. The requests are granted, except for Exhibit M which was blank.

EVIDENTIARY OBJECTIONS

Yeroushalmi’s objections to the Declaration of Dariush Soofer and its exhibits are overruled. Yeroushalmi’s objections to the Declaration of Amanda Soofer and its exhibits are overruled. Yeroushalmi’s objections to the Declaration of Carol Brophy are overruled. Yeroushalmi’s objections to the Request for Judicial Notice are overruled.

Defendant’s objections to the Declaration of Reuben Yeroushalmi and its exhibit are overruled. Defendant’s Objection Nos. 1-11, and 14, and Exhibits A-H, K-M to the Declaration of Michael Marcus are overruled. Defendant’s Objection Nos. 12-13 and Exhibits I-J to the Declaration of Michael Marcus are sustained. The Court did not rely on the Declaration of Robert Kehr.

FACTUAL BACKGROUND

In February 2017, Plaintiff issued Proposition 65 notices to Defendant alleging that Defendant’s spice products contained lead and lead compounds. (D. Soofer Decl. ¶ 15.) Defendant contacted Yeroushalmi, and they met in May 2017 and then on or about June 30, 2017. (D. Soofer Decl. ¶¶ 16-18, 21.)

Yeroushalmi presented a settlement structure and terms that would resolve both the dispute concerning the spice products and the Rice Litigation. (D. Soofer Decl. ¶ 21.) Defendant contends Yeroushalmi proposed acting as Defendant’s attorney to facilitate the settlement and to provide Proposition 65 counseling services going forward, and that the terms should be memorialized in a confidential Memorandum of Understanding (“MOU”). (D. Soofer Decl. ¶ 22; A. Soofer Decl. ¶ 27.) According to Defendant, Yeroushalmi promised that if Defendant signed the MOU, he would not issue notices to retailers or vendors of Defendant’s products because Defendant would be protected as Yeroushalmi’s client. (D. Soofer Decl. ¶ 30.)

The parties signed the MOU in early July 2017. (D. Soofer Decl. ¶, 31; A. Soofer Decl. ¶ 31.) At the top, the document is entitled “Confidential Binding Memorandum of Understanding and Settlement.” (D. Soofer Decl., Ex. A at p. 1.) The first paragraph states, “The effective date of this Memorandum shall be the date upon which all Parties have signed this Memorandum.” (Ibid.) The parties signed the MOU on July 5 and 6, 2017. (Id. at pp. 5-6.)

According to the MOU, Defendant would pay $250,000 in six installments in the form of $125,000 to resolve the Rice Litigation and $125,000 to Yeroushalmi “for attorneys’ fees for Consulting Services Rendered at Sec. 2.2. below.” (D. Soofer Decl. ¶¶ 25, 37, Ex. A at p. 1.) Section 2.2. stated Defendant would pay $125,000 “to Attorney for consulting services rendered” and that the payment was for “reimbursement for past and current consultant services rendered advising Soofer on compliance issues related to Proposition 65 and environmental laws in the interest of the public.” (Id. at ¶ 32, Ex. A at p. 2.) Plaintiff and Yeroushalmi agreed not to pursue any alleged Proposition 65 allegations against Defendant so long as it agreed to monitor its food products. (Ibid.) Plaintiff “acknowledge[d] that concurrent consultant services provided by Reuben Yeroushalmi to Soofer constitute the representation of potentially conflicting interests, to the extent that Soofer’s interests and those of [Plaintiff] are potentially adverse. [Plaintiff] nevertheless knowingly and voluntarily consents to such concurrent consultant services by Reuben Yeroushalmi to Soofer.” (Id. at Ex. A at p. 3.)

Defendants states that between mid-May 2017 and early July 2017, Yeroushalmi requested and Defendant provided information related to the products that were the subject of the Proposition 65 notices, Defendant’s customers and distribution network, Defendant’s vendors and supply network, Defendants’ manufacturing, Defendant’s testing of the product and general compliance strategy, Defendant’s defenses and strategy, and Defendant’s general finances and financial status. (D. Soofer Decl. ¶ 23; A. Soofer Decl. ¶ 29.) Defendant discussed with Yeroushalmi which products it was concerned might lead to future suits against Defendant and its vendors and the financial impact of the litigation and MOU on Defendant’s viability, among other topics at issue in the disputes between Plaintiff and Defendant. (D. Soofer Decl. ¶ 35.)

Defendant continued to meet with Yeroushalmi and gave him more confidential information, with the understanding that he was acting as Defendant’s attorney. (D. Soofer Decl. ¶¶ 34-36.) When Yeroushalmi did not receive immediate payment under the MOU, he informed Defendant that the MOU was void. (Id. at ¶ 39; A. Soofer Decl. ¶¶ 38.) Plaintiff then proceeded with this lawsuit against Defendant.

DISCUSSION

As an initial matter, this motion is similar to Defendant’s motion to disqualify Yeroushalmi filed in Consumer Advocacy Group, Inc. v. Mateo Rice Processing (Pvt.) Ltd., Case No. BC556594 (“Rice Litigation”), which was granted on July 21, 2020. (RJN, Exs. I, J.) Yeroushalmi argues that that ruling is not precedent and does not collaterally estop a different decision here. While that is correct, the ruling in the Rice Litigation was a detailed and convincing discussion of the same or similar arguments and evidence at issue here. This Court is not bound by that ruling. Nor is it prohibited from adopting analysis and conclusions in that ruling. Having independently reviewed and considered all of the papers filed in this case in support of and in opposition to the motion, and for the reasons discussed below, as well as the reasons discussed in more detail in the ruling in the Rice Litigation where applicable, the Court grants Defendant’s motion.

“‘A trial court’s authority to disqualify an attorney derives from the power inherent in every court “[t]o control in furtherance of justice, the conduct of its ministerial officers, and of all other persons in any manner connected with a judicial proceeding before it, in every matter pertaining thereto.”’” (Ontiveros v. Constable (2016) 245 Cal.App.4th 686, 694, quoting People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1145.) “‘[D]isqualification motions involve a conflict between the clients’ right to counsel of their choice and the need to maintain ethical standards of professional responsibility.’” (Id. at 694-695.) “When deciding a motion to disqualify counsel, ‘[t]he paramount concern must be to preserve public trust in the scrupulous administration of justice and the integrity of the bar. The important right to counsel of one’s choice must yield to ethical considerations that affect the fundamental principles of our judicial process.’ [Citation.]” (O’Gara Coach Co., LLC v. Ra (2019) 30 Cal.App.5th 1115, 1124.)

Disqualification

Defendant contends that Yeroushalmi’s representation of both Plaintiff and Defendant requires disqualification of him and his law firm. (Motion at p. 10.) California Rules of Professional Conduct rule 1.7(d)(3) prohibits representation that “involve[s] the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.” In such a case, disqualification is automatic with only few exceptions. (People ex rel. Dept. of Corporations v. SpeeDee Oil Change Systems, Inc. (1999) 20 Cal.4th 1135, 1147 (SpeeDee Oil).) Defendant argues it and Plaintiff had interests directly adverse to each other when the MOU was executed because Soofer was engaged in the Rice Litigation against Plaintiff and had conflicting interests concerning spices, which had already been the subject of the Proposition 65 notices and which ultimately turned into this litigation.

Defendant also argues Yeroushalmi violated California Rules of Professional Conduct rule 1.9 prohibiting a lawyer from representing a person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of a former client unless the former client gives informed written consent and from using confidential information learned in the course of the representation of the former client.

In opposition, Yeroushalmi argues that no attorney-client relationship existed between Yeroushalmi and Defendant, the MOU was only a “settlement in principle” and never went into effect, Yeroushalmi did not receive any confidential information from Defendant, and the information Yeroushalmi did receive was publicly available.

“An attorney represents a client – for purposes of a conflict of interest analysis – when the attorney knowingly obtains material confidential information from the client and renders legal advice or services as a result.” (SpeeDee Oil, supra, 20 Cal.4th at p. 1148.) The MOU is evidence that an attorney-client relationship existed between Yeroushalmi and Defendant. The MOU expressly stated that it was binding and effective upon the last signature. Section 2.2.1 expressly stated that Soofer was to pay Yeroushalmi “for consulting services rendered” – in the past tense referring to services already rendered – and not for consulting services to be rendered. (D. Soofer Decl., Ex. A at p. 1.) Section 2.2.2 states that the payment is “reimbursement for past and current consulting services,” again referring to past services rendered by Yeroushalmi. (Ibid.) Section 4 contained the conflict waiver in which Plaintiff acknowledged “concurrent consultant services” provided by Yeroushalmi to Defendant “constitute the representation of potentially conflicting interests.” (Id. at p. 4.) This provision is evidence that Yeroushalmi was providing services at the same time to both Defendant and CAG and that Defendant’s and CAG’s interests were potentially conflicting and adverse. Yeroushalmi’s argument that the MOU does not mean what it says is not convincing. Thus, whether the representation was considered past or current at the time of the MOU, Yeroushalmi violated the Rules of Professional Conduct prohibiting representation of two clients with adverse interests.

Yeroushalmi states that he did not receive confidential information from Defendant, which he confirmed through searching his firm’s records and email. (Yeroushalmi Decl. ¶ 22.) However, Dariush Soofer and Amanda Soofer identified the types of confidential and private information they shared in conversations with Yeroushalmi. (D. Soofer Decl. ¶ 35; A. Soofer Decl. ¶ 29.) While Yeroushalmi’s declaration states that he did not find any confidential information from Defendant in the firm’s records or email, he does not expressly state that he never discussed with Dariush Soofer and Amanda Soofer the types of information they identified in their declarations. Also, Yeroushalmi did not show that information about Defendant’s financial concerns and litigation strategy and defenses were publicly available.

And, there is written evidence that Yeroushalmi provided what can be construed as advice or consulting services to Defendant. On July 3, 2017, Yeroushalmi’s office shared with Defendant the results of testing it conducted on some of Defendant’s products and informed Defendant, “Please refer to the attached test results. These results show very high levels of lead in your spices, and in various varieties of spices. As you can see, this is a serious health issue which we need to address through the Agreement. Hopefully, we can finalize very soon so that the public benefits immediately. Thank you.” (Yeroushalmi Decl. ¶ 15 & Ex. F.)

There is no evidence that Defendant waived any conflict in writing, and it is undisputed the matters both involved the Rice Litigation and the issues that became this litigation, meaning there was a substantial relationship between the matters.

In sum, Defendant established an attorney-client relationship between Yeroushalmi and Defendant at a time when Yeroushalmi also represented Plaintiff and when Plaintiff and Defendant had adverse interests. During that relationship, Yeroushalmi received material confidential information from Defendant. The evidence is sufficient to require the disqualification of Reuben Yeroushalmi and the law firm Yeroushalmi & Yeroushalmi

Delay

Yeroushalmi argues that Defendant waived its right to seek disqualification because it waited over two and a half years after the alleged conflict arose. (Opposition at p. 19.) After one party makes a prima facie showing of unreasonable delay, the party seeking disqualification must justify the delay by addressing “(1) how long it has known of the potential conflict; (2) whether it has been represented by counsel since it has known of the potential conflict; (3) whether anyone prevented the moving party from making the motion earlier, and if so, under what circumstances; and (4) whether an earlier motion to disqualify would have been inappropriate or futile and why.” (River West, Inc. v. Nickel (1987) 188 Cal.App.3d 1297, 1309.)

Defendant knew at that time it executed the MOU in July 2017 that Yeroushalmi also represented Plaintiff. (See, e.g., D. Soofer Decl. ¶ 7; A. Soofer Decl. ¶ 9.) Defendant retained counsel in connection with the Rice Litigation in 2014 (D. Soofer Decl. ¶ 8), and Defendant has also been represented by counsel in this action since at least when it filed its first answer on March 2, 2018.

Amanda Soofer told Defendant’s current counsel about the MOU only on December 2, 2019. (D. Soofer Decl. ¶ 43; A. Soofer Decl. ¶ 45; Brophy Decl., ¶ 4; Brophy Suppl. Decl. ¶ 4.) Before then, Defendant was unaware that the MOU was evidence of unethical conduct because Yeroushalmi had stated that the MOU was void. (A. Soofer Decl. ¶ 45.) Defendant was also afraid of personal and professional repercussions from Yeroushalmi if it told anyone about the MOU. (D. Soofer Decl., ¶ 42; A. Soofer Decl. ¶ 45.) Yeroushalmi had emphasized to Defendant that the MOU’s confidentiality clause could be used against Defendant if it discussed the MOU with anyone, including outside counsel. (D. Soofer Decl., ¶ 41; see A. Soofer Decl. ¶ 35.) Defendant did not authorize counsel to use the MOU in legal proceedings until January 28, 2020. (Brophy Decl., ¶ 7; Brophy Suppl. Decl. ¶ 7.) Counsel initially received a hearing date in April 2020, which the Court continued multiple times due to the pandemic. (Brophy Decl., ¶¶ 9-11; Brophy Suppl. Decl. ¶ 9-10.) Under these circumstances, Defendant did not unreasonably delay in bringing a motion to disqualify Plaintiff’s counsel.

Yeroushalmi argues the delay is prejudicial for Plaintiff because Plaintiff will face exorbitant costs in bringing another attorney up to speed, Yeroushalmi has a long term relationship with Plaintiff, and it is difficult to find another attorney with a similar level of experience who is willing to take this case on a contingent fee basis. The last two points are not made worse by the delay. As for the first point, Yeroushalmi did not present evidence that the cost of bringing a new attorney up to speed will be more now than if Defendant had made this motion two years earlier.

CONCLUSION

The motion to disqualify Reuben Yeroushalmi and the firm Yeroushalmi & Yeroushalmi from representing Plaintiff is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****9776    Hearing Date: June 30, 2020    Dept: 48

[TENTATIVE] ORDER RE: MOTION TO APPROVE AND ENTER CONSENT JUDGMENT

On February 2, 2018, plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed its first amended complaint against defendant Mercado Latino, Inc. (“Defendant”) and others for civil penalties and injunctive relief based on violations of Health & Safety Code section 25249.6 et seq. On January 30, 2020, Plaintiff filed this motion to approve a consent judgment entered into with Defendant. Plaintiff asserts that the consent judgment is fair and reasonable to the parties, is in the interest of and provides a benefit to the general public, has been submitted for review to the Office of the Attorney General of California, and fully complies with the statutory and regulatory requirements of Proposition 65.

LEGAL STANDARD

The Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65, was passed as a ballot initiative by the California voters, and was designed to prevent the contamination of drinking water with, and generally protect the public from unknowing exposure to, harmful chemicals. (See generally 12 Witkin, Summary of California Law 10th (2005) Real Property, ; 894, p. 1075.) Proposition 65 has both public and private enforcement mechanisms. (See Health & Saf. Code, ; 25249.7 subds. (c), (d).) Violations are punishable by injunction and civil penalty. (Health & Saf. Code ; 25249.7, subds. (a), (b).) In private enforcement actions, parties may also recover attorney’s fees, pursuant to the provisions in Code of Civil Procedure section 1021.5.

A court may approve a settlement in a Proposition 65 action only if the court makes all of the following findings: (1) the warning that is required by the settlement complies with Proposition 65’s requirements as set forth in section 25249.6; (2) the award of attorney’s fees is reasonable under California law; (3) the penalty amount is reasonable based on the criteria set forth in section 25249.7, subdivision (b)(2). (Health & Saf. Code section 25249.7, subd. (f)(4).) “To stamp a consent agreement with the judicial imprimatur, the court must determine the proposed settlement is just. . . . In the context of Proposition 65 litigation, necessarily brought to vindicate the public interest, the trial court also must ensure that its judgment serves the public interest.” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 61.)

DISCUSSION

Compliancy of Warning

Health & Safety Code section 25249.6 states, in relevant part: “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.) For a warning to be clear and reasonable, the manner of transmission must be reasonable, and the message employed must be sufficiently clear to communicate the warning. (Environmental Law Foundation v. Wykle Research, Inc. (2005) 134 Cal.App.4th 60, 67, fn. 6.)

Plaintiff submitted a copy of the proposed consent judgment. (Yeroushalmi Decl., Ex. A [“Consent Judgment”].) Under the Consent Judgment, after the effective date, Defendant shall not sell in California any ground sage and ground ginger (“Covered Products”) unless the level of lead in the ground sage and ground ginger does not exceed 375 parts per billion and 720 parts per billion, respectively. (Consent Judgment ; 3.1.) For any Covered Products that exceed the permissible level of lead as of the effective date, Defendant must provide a Proposition 65-compliant warning. (Id. ; 3.2.) For any Covered Products still existing in Defendant’s inventory as of the effective date, Defendant must provide a Proposition 65-compliant warning, unless these Covered Products do not exceed the 375 parts per billion lead in ground sage and 720 parts per billion lead in ground ginger. (Id. ; 3.3.) The warning language will state: “WARNING: Consuming this product can expose you to chemicals including Lead, which is known to the State of California to cause cancer and birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food.” (Id. ; 3.2.) This satisfies the warning requirement set forth in Health and Safety Code section 25249.6.

The Court finds the warning proposed by the settlement is clear and reasonable and complies with the Health and Safety Code.

Reasonableness of Attorney Fees

The fees setting inquiry in California ordinarily begins with the “lodestar” method, i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate. The lodestar figure may then be adjusted, based on consideration of factors specific to the case, to fix the fee at the fair market value of the legal services provided. (Serrano v. Priest (1977) 20 Cal.3d 25, 49.) After the court has performed the lodestar calculations, it shall consider whether the total award so calculated under all of the circumstances of the case is more than a reasonable amount and, if so, shall reduce the award so that it is a reasonable figure. (PLCM Group v. Drexler (2000) 22 Cal.4th 1084, 1095-1096.)

Plaintiff seeks to recover $65,000 in attorney fees and costs, and Defendant has agreed. (Consent Judgment ; 4.1.3.) This is less than the $89,127.50 lodestar amount for 202.9 hours at various billing rates. (Yeroushalmi Decl. ¶ 21.) The Court finds that the amount of $65,000 represents reasonable attorney fees for the work performed as set forth in the detailed summary of actions undertaken in investigating, litigating, and settling this action. (Yeroushalmi Decl. ¶¶ 22-30.)

Based on this, the Court finds that the amount of attorney fees and costs provided to Plaintiff in the settlement is reasonable.

Reasonableness of Civil Penalty

The civil penalty is not to exceed $2,500 per day for each violation. (Health & Saf. Code ; 25249.7, subd. (b)(1).) In assessing the amount of a civil penalty, the court must consider (1) the nature and extent of the violation, (2) the number and severity of the violations, (3) the economic effect of the penalty on the violator, (4) whether and when the violator took good faith measure to comply with regulations, (5) the willfulness of the violator’s misconduct, (6) the deterrent effect on the violator and the regulated community as a whole, and (7) “[a]ny other factor that justice may require.” (Health & Saf. Code ; 25249.7, subd. (b)(2).)

Defendant will pay $8,572 to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and Plaintiff as civil penalties. (Consent Judgment ; 4.1.1.) Of this amount, 75% ($6,429) will be paid to OEHHA and 25% ($2,143) will be paid to Plaintiff. (Ibid.)

The Court finds that $8,572 in civil penalties is reasonable.

Public Benefit Through “Offset”

Under the Consent Judgment, Defendant will pay $6,428 as an Additional Settlement Payment to Plaintiff, an entity, as an “offset” to the civil penalty. (Consent Judgment ; 4.1.2; see Cal. Code Regs., tit. 11, ; 3203, subd. (d).)

Plaintiff will use the Additional Settlement Payments for investigation fees, purchasing and testing for Proposition 65 listed chemicals in various products, expert fees for evaluating exposures through various mediums, hiring consulting and retaining experts who assist with scientific analysis for files in litigation, administrative costs of investigation, and litigation to reduce the public’s exposure to Proposition 65 listed chemicals by notifying responsible persons/entities. (Consent Judgment ; 4.1.2; Marcus Decl. ¶ 6.)

The Court therefore finds that the settlement serves the public interest.

Additionally, Plaintiff’s counsel served this motion on the Attorney General, who has not objected, and Plaintiff’s counsel will also report the entered judgment to the Attorney General. (Yeroushalmi Decl. ¶ 29.)

Release Provision

Plaintiff purports to release claims arising from actual or alleged violations of Proposition 65 or any other statutory or common law claim regarding the Covered Products manufactured, distributed, or sold by Defendant through the effective date regarding any actual or failure to warn about exposure to the listed chemicals in the Covered Products. (Consent Judgment ; 5.1.)

This release is specifically limited to Defendant’s Covered Products and claims presented in this lawsuit. The scope of this release is thus proper. Plaintiff also releases certain claims “on behalf of itself, its past and current agents, representatives, attorneys, successors, and/or assignees,” which is appropriate because it does not purport to release claims on behalf of the public. (Consent Judgment ; 5.2.)

The release provision is permissible.

CONCLUSION

Plaintiff’s Motion to Approve and Enter Consent Judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. Parties intending to appear are STRONGLY encouraged to appear remotely.



Case Number: ****9776    Hearing Date: December 19, 2019    Dept: 48

MOTION TO APPROVE AND ENTER CONSENT JUDGMENT

MOVING PARTY: Plaintiff Consumer Advocacy Group, Inc.

RESPONDING PARTY(S): No opposition filed.

PROOF OF SERVICE:

ANALYSIS

Motion to Approve and Enter Consent Judgment

Plaintiff Consumer Advocacy Group, Inc. moves to approve and enter consent judgment between Plaintiff and Defendants Royal Deluxe Accessories, LLC, Royal Items, Inc., Five Below, Inc. and 1616 Holdings, Inc.

Discussion

1. Re: Any warning that is required by the settlement complies with this chapter.

A copy of the Consent Judgment was presented to the Court. Pursuant to the Consent Judgment, after the Effective Date, Defendants RDA and RI shall not sell or ship in California any Covered Product unless the level of DEHP does not exceed 0.1% by weight (1,000 parts per million (ppm)) and shall not sell or ship in California any DBP Covered Products unless the level of DBP does not exceed 0.1% by weight (1,000 ppm). Also, after the Effective Date, Defendants FBI and FBM shall not sell or ship in California any Plastic Bags purchased from RDA or RI unless the level of DEHP does not exceed 0.1% by weight (1,000 ppm). Consent Judgment, ; 3.1.

For any Covered Products still existing in Defendants’ inventory as of the Effective Date, Defendants must provide a Proposition 65-compliant warning. Consent Judgment ; 3.2. The foregoing satisfies the warning requirement set forth in Health and Safety Code ; 25249.6.

As such, this requirement is satisfied.

2. Re: Any award of attorney's fees is reasonable under California law.

Plaintiff seeks to recover $180,000.00 in attorney’s fees and costs, to which Defendant has agreed. Consent Judgment, ; 4.1.3. The Court notes that there were some discovery motions, and also a motion for summary judgment brought by defendants which motion was denied. See October 15, 2018 minute order.

This is less than the $254,527.00 lodestar amount. Declaration of Reuben Yeroushalmi, ¶ 26. The Court finds that the amount of $180,000 represents a reasonable amount of attorney’s fees for the work performed as set forth in the Yeroushalmi Decl., ¶¶ 35 et seq.

This requirement is satisfied.

3. Re: Any penalty amount is reasonable based on the following criteria.

Defendant will pay $61,720.00 to the State of California Office of Environmental Health Hazard Assessment (“OEHHA”) and Plaintiff as civil penalties. 75% ($41,790.61) will be paid to OEHHA and 25% ($13,930.20) will be paid to Plaintiff. Consent Judgment at ; 4.1.1(a).

The $61,720 penalty is appropriate under 11 CCR ; 3203.

4. Payments to entity as “offset” to the civil penalty.

Under the Consent Judgment, Defendant will pay $46,280.00 as an Additional Settlement Payment (Consent Judgment ; 4.1.2) to Plaintiff Consumer Advocacy Group, an entity, as an “offset” to the civil penalty pursuant to 11 CCR ; 3203(d), which provides in pertinent part:

(d)  Where a settlement requires the alleged violator to make any Additional Settlement Payments to the plaintiff or to a third party, such Additional Settlement Payments are viewed as an "offset" to the civil penalty. The plaintiff must demonstrate to the satisfaction of the court that it is in the public interest to offset the civil penalty required by statute.

11 CCR ; 3203(d).

Plaintiff’s use of the Additional Settlement Payments will be toward fees of investigation, purchasing and testing for Proposition 65 listed chemicals in various products, expert fees for evaluating exposures through various mediums, the cost of hiring consulting and retaining experts who assist with scientific analysis for files in litigation, administrative costs of investigation and litigation to reduce the public’s exposure to Proposition 65 listed chemicals by notifying responsible persons/entities. Declaration of Michael Marcus, ¶ 6.

The Court finds that the settlement serves the public interest.

The Attorney General has not objected to the Additional Settlement Payments, as it is instructed to do in consideration of the factors set forth in 11 CCR ; 3204(b).

Release Provisions

Plaintiff purports to release claims arising from actual or alleged violations of Proposition 65 or any other statutory or common law claim regarding the Covered Products manufactured, distributed or sold by the Released Parties through the Effective Date regarding any actual or failure to warn about exposure to the listed chemicals in the Covered Products. Consent Judgment ; 5.1.

This release is specifically limited to Defendant’s Covered Product and claims presented in this lawsuit; the scope of this release is proper. Plaintiff CAG also releases certain claims “on behalf of itself” which is appropriate because it does not purport to release claims on behalf of the public. Consent Judgment ; 5.2.

The release provision is permissible.

In light of the foregoing, the motion to approve the Stipulated Consent Judgment is GRANTED.



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