Judge Upholds AG Regulation Re: 45-Day Rule; TCG Clients to Appeal
On April 23, 2013, Sacramento County Superior Court Judge David I. Brown granted California Attorney General (AG) Kamala Harris’s motion for judgment on the pleadings against the complaint of Plaintiffs Anthony Held, Russell Brimer, and John Moore, clients of The Chanler Group, and dismissing the case. Plaintiffs challenged the legality of the AG’s regulation, Section 3003 of Title 11 of the California Code of Regulations, requiring citizen enforcers such as plaintiffs to serve motions to approve a Proposition 65 settlement on the AG at least 45 days before the hearing on the motion, rather than 16 court days before the hearing as allowed by Code of Civil Procedure (CCP) section 1005(b).
Judge Brown’s tentative ruling, posted the day before the hearing held on April 18, 2013, was to grant the AG’s request to dismiss the case based on the judge’s initial determination that there was no conflict between the AG’s regulation, requiring service of a motion to approve a Proposition 65 settlement at least 45 days before the hearing, and CCP section 1005(b), allowing a motion to be filed exactly 16 court days before the hearing.
At the hearing on April 18, 2013, the judge was an active participant in the oral arguments presented over the course of an hour by the parties. According to Laurence Haveson, TCG counsel appearing on behalf of plaintiffs, on at least one occasion during oral argument, the judge appeared to be changing his mind about his tentative ruling. At the hearing, the judge gave due consideration to plaintiffs’ argument that the AG’s regulation prevented Prop 65 plaintiffs from serving the AG with a motion to approve a settlement on the same day that plaintiffs filed the motion to approve, if the motion was set to be heard exactly 16 days from the date of filing and service on the AG. Rather than adopting the tentative ruling at the hearing, Judge Brown took the matter under submission.
In a written minute order issued on April 23, 2013, Judge Brown ultimately decided to adopt the tentative ruling, finding that “because a litigant can comply with the Attorney General's regulation and Code of Civil Procedure section 1005, subdivision (a), there is no conflict” between the regulation and the statute.
With all due respect to Judge Brown and the California Attorney General, plaintiffs Held, Brimer, and Moore disagree with the ruling and believe, as they argued in their opposition papers, that by adopting its regulation, and imposing a 45-day notice requirement for motions to approve Proposition 65 settlements in the public interest, the Attorney General has unconstitutionally exercised legislative power by enlarging the time required to file and serve a noticed motion. With the adoption of the AG’s regulation, plaintiffs cannot exercise their statutory right to file such motions exactly 16 court days before the hearing on the same day that they serve the AG with a copy of the motion. The regulation is also contrary to the intent of the California Legislature, which had determined that filing a motion 16 court days before the hearing was a "reasonable balance" between the court's need for time to review motions and litigants' desire to have their motions heard in a timely manner.
Because the 45-day rule will continue to create delays in plaintiffs’ ability to secure Prop 65 settlements in the public interest, thus postponing the collection of millions of dollars in civil penalties payable to the State of California and postponing deadlines for companies to reformulate their products to virtually eliminate the presence of chemicals known to cause cancer and reproductive harm, plaintiffs intend to appeal the ruling to the California Court of Appeal for the Third Appellate District.
The Chanler Group represents citizen enforcers who, acting in the public interest, commence actions against businesses offering products for sale in California that contain chemicals known to cause cancer or reproductive harm without first providing the health hazard warning required by Proposition 65. Citizen enforcers bringing Proposition 65 actions in the public interest may obtain a Court Judgment imposing civil penalties, an injunction requiring reformulation of products, and/or provision of health hazard warnings. The Chanler Group has represented citizen enforcers of Proposition 65 for more than twenty years.
Read the Sacramento County Superior Court’s Minute Order Below