Citations
- 137 Cal. App. 4th 1185
Full opinion text
Opinion
SILLS, P. J.—
I. INTRODUCTION
A prerequisite for the private enforcement by way of litigation of the warning provisions of Proposition 65 is a 60-day notice from the would-be private enforcer to the alleged violator and to relevant prosecutorial authorities—particularly the Attorney General’s office—sufficient to give the alleged violator and the appropriate governmental authorities opportunity to both undertake a meaningful investigation and instigate remedial action prior to the filing of litigation. (Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, 740 [106 Cal.Rptr.2d 332] [“We conclude that the notices sent were insufficient because they failed to state sufficient specific facts to enable the alleged violators and the appropriate governmental agencies to undertake a meaningful investigation and remedy the alleged violations prior to citizen intervention. Thus, the trial court did not err in sustaining demurrers without leave to amend and dismissing the actions.”].)
The present appeal centers on two sets of notices of violation of Proposition 65, each served on literally hundreds of apartment owners and managers.
The first notice was literally predicated on only two things: One, each apartment had . . . parking facilities! Thus the apartment allegedly “exposed” tenants and visitors to carcinogens in auto exhaust without giving them a Proposition 65 warning.
Two, each apartment did not prohibit tobacco smoking everywhere on the premises. Hence somewhere on the property the apartment allegedly “exposed” its tenants and visitors to secondhand tobacco smoke, again without posting a Proposition 65 warning.
The second notice was much longer. Like the first notice it included the allegation that someone, somewhere, might not be prohibited from smoking on the property. And like the first it included allegations that one might actually drive a car onto a parking lot on the property. But the second notice also alleged a host of additional things about each apartment that were . . . indistinguishable from every other building in the state. This longer notice was predicated on, among other things, the facts that the apartments had roofs (the constituent parts of roofing materials may themselves be carcinogenic), contained furniture (furniture often is made of a foam that is made of materials that may be carcinogens), permitted people to bring copy paper into the apartment (yes, literally speaking, carbonless copy paper “contains” carcinogens!) or are cleaned with various commercial cleaners.
The notices really were that broad—and we will prove it by quoting them at length, beginning on page 1191. If one were to take the notices at face value, a reasonable person would conclude this: All you need to have is paint on the walls, furniture inside, and a parking lot, and if you haven’t posted a Proposition 65 warning, you are a “violator” of Proposition 65.
California’s Attorney General became involved in the case by objecting to a settlement quickly arrived at by the front corporation prosecuting the private enforcement action on behalf of a law firm who consist of self-proclaimed bounty hunters, and a trade group representing the apartment owners and managers. The trade group wanted to buy its peace and was willing to pay off the law firm to obtain it, in return for which the owners would also get a favorable deal with regard to any future litigation concerning alleged Proposition 65 violations. The bounty hunter lawyers wanted to get paid hefty fees, which is what the whole thing was obviously about in the first place. The trial court, however, concluded that it did not want to stand in the way of two consenting parties willing to settle. The Attorney General has timely appealed from the orders approving the settlement.
We must reverse. To affirm would be to nullify the regulations that require meaningful notice to prosecutorial authorities which differentiates the target business in Proposition 65 warning litigation from nontarget businesses so the Attorney General has a genuine opportunity to decide on behalf of the public whether Proposition 65 litigation is warranted. (See Cal. Code Regs., tit. 22, § 12903, subd. (b)(2)(F); see generally Yeroushalmi v. Miramar Sheraton, supra, 88 Cal.App.4th 738 [inadequate notice required dismissal of litigation].)
II. BACKGROUND
A. The Parties
Beginning in 2000, Consumer Defense Group and a related entity, The McKenzie Group, began this case by serving hundreds of notices of violations of Proposition 65 (Health & Saf. Code, § 25249.5 et seq.) on various apartment owners or property managers. Consumer Defense and McKenzie consist of Anthony Graham, his law partner, Michael Martin, Gayle McKenzie (“counsel to Graham & Martin”) and Gayle McKenzie’s brother. In other words, Consumer Defense Group and McKenzie are simply straw plaintiffs set up to enable the law firm of Graham & Martin to obtain legal fees in Proposition 65 litigation. We will therefore refer to the “plaintiffs” by the title most substantively accurate: Graham & Martin.
The defendants would ultimately turn out to be a group of about 170 apartment owners and managers, who aggregately manage over 1,000 apartment complexes. All defendants, however, would be represented by one law firm, apparently because the target apartment owners and managers are affiliated with the California Apartment Association.
B. The Notices
Two different sets of notices appear in the record, though a number of apartments received both. The Attorney General’s description of these notices as the “narrow notice” and the other the “global notice” is accurate, and we will adopt that description.
The “narrow” notice consisted of three pages of single-spaced type. The “global” notice consisted of about 21 pages of single-spaced text. We will not bury the text of these notices in footnotes. To adequately convey the nature of these notices, we will now quote much of the operative language of each notice (all would be prohibitive). And while it may be tempting for readers to glance over the text of the notices, we invite readers to plow through them and, as they do, think about what the notices are actually saying. Under the heading for the “global” notice we will further include language from an exhibit B, attached to the global notice, which attempts to give “details of specific violations.”
1. The Narrow Notice
“[f] ■••[][] This Notice is intended to inform the Violator that it has violated Proposition 65, the Safe Drinking Water and Toxic Enforcement Act (commencing with Health and Safety Code Section 25249.5) (hereinafter ‘Proposition 65’) by failing and refusing to post clear and reasonable warnings at facilities listed on Exhibit A hereto (which are owned and managed by the Violator) (hereinafter ‘the Facilities’) that the Violator (1) permits the smoking of tobacco products at the Facilities, which exposes customers, visitors and employees to tobacco smoke in the areas where smoking is permitted; and (2) permits the operation of motor vehicles at the Facilities, which exposes customers, visitors and employees to diesel and gasoline exhaust fumes, and the chemicals contained in those fumes, in the areas where such vehicles are allowed to be operated, [f] . . . [][]
“Persons representing CDG [Consumer Defense Group] have personally visited each of the Facilities in the period beginning September 2003 and ending February 2004 (hereinafter referred to as the ‘Investigation Period’). During those investigations CDG discovered that the Facilities are owned and/or managed by the Violator, and that the Violator has more than nine employees. Those investigations showed that the Violator has chosen to allow its customers, visitors and employees at each of the Facilities to smoke tobacco products, and has specifically chosen to allow smoking in certain areas. Those areas are the apartments, the lobbies, corridors and hallways of floors where apartments where smoking is allowed are located, areas adjacent to pools, entrances and common areas where smoking is permitted, public walkways and parking areas where smoking is permitted. Further, those investigations showed that the Violator has chosen to allow its customers, visitors and employees at each of the facilities to operate motor vehicles in certain areas, the driveways and parking areas.
“In the Facilities and areas noted the Violator has chosen to allow its customers, visitors and employees to be exposed to: (1) tobacco smoke via the breathing of second hand tobacco smoke and via contact with their skin and clothing; and, (2) diesel and gasoline exhaust fumes via the breathing of such fumes (inhalation) and by contact with the skin and clothing (dermal contact). ...”
2. The Global Notice
a. General Allegations
“[][] . . . [f] The Violator has chosen to allow its tenants, visitors, guests, invitees, contractors and employees at each of its facilities to be exposed to Designated Chemicals associated with its operations . . . and in doing so has violated the statute. The Violator, in the ordinary course of business, knows controls and intends much of the conduct and actions of its tenants, visitors, guests, invitees, contractors and employees at each of the Properties listed in Exhibit A (hereinafter, ‘the Properties’). The activities of the Violator including its employees and contractors, and the facilities and amenities provided at the Properties, expose tenants, visitors, guests, invitees, contractors and employees to Designed Chemicals. H] . . . ffl”
Under the heading of “Environmental Exposures” the document continues:
“While in the course of doing business, at the locations in the attached Exhibit A, from March 1, 2000 through the date of this notice, the Violator has been and is knowingly and intentionally exposing tenants, visitors, guests, invitees and contractors, and employees to Designed Chemicals Usted in the ‘DETAILS OF GENERAL VIOLATIONS,’ see below, and ‘DETAILS OF SPECIFIC VIOLATIONS,’ see Exhibit B, hereto, and known to the State of California to cause cancer, developmental toxicity or other reproductive harm without first giving clear and reasonable warning of that fact to the exposed persons (Health & Safety Code § 25249.6.) . . . .”
Under the “Details of General Violations” are these assertions:
“After appropriate due diligence and investigation of Violator’s Properties and activities, including review and verification of detailed information regarding exposures to tenants, visitors, guests, invitees, contractors and employees, and consultations with experts on such matters, such unlawful exposures occur in the following ways at the Violator’s Properties.”
Then come 15 boldfaced headings, with assertions concerning various carcinogens and developmentally toxic materials under each section, which we will also quote:
“1. Second-hand Tobacco Smoke and Smokeless Tobacco Products
“. . . . Smoking is generally allowed in outdoor common areas and other areas designated by the Properties’ Manager, including individual apartments, resulting in exposure to tobacco smoke. [][]... Q]
“2. Combustion Products and Materials
“. . . . Charcoal, artificial logs and fire starters . . . and wood burning in barbeques, hibachis and fireplaces emit carbon monoxide (developmental toxicity), . . . soots and tar (cancer) . . . creosotes (cancer). [][]... [f]
“Fireplaces, patio heaters, kitchen stoves and ovens .... which use natural gas . . . and other pressurized fuel gases emit carbon monoxide (developmental toxicity), formaldehyde (cancer), soots and tars (cancer), benzene . . . . toluene . . . and radon. ... H] ... [f]
“3. Hobby-Related Products and Materials
“Arts and crafts hobbies include painting, ceramics and sculpture cause exposure to Designated Chemicals. Ceramic glazes and clays made by [certain manufacturers] contain crystalline silica .... Ceramic glazes and paints made by [certain manufacturers] depending on color, contain lead and lead compounds .... cadmium and cadmium compounds .... Crayons contain asbestos (cancer) and ceramic fibers (cancer). ... Oil and solvent-based aerosol and non-aerosol paints, thinners and marking pens contain toluene . . . and benzene. [Brand name] Spray Adhesive contains toluene. . . . m... m
“4. Apartment Properties Construction Materials
“. . . . Various types of roofing materials of various types when deteriorating or undergoing repair/replacement result in emissions of Designated Chemicals to which persons are exposed. (1) Built-up roofs contain asbestos .. . or fiberglass (ceramic fibers-cancer) felting and insulation that can be released through deterioration . . . built-up roofs also contain coal tar or petroleum asphalt which contain the following designated chemicals . . . chrysene, toluene diisocyanate .... nickel and nickel compounds, dichloromethane (methylene chloride), benzene .... Built-up roof insulation and repair uses sand and aggregate, which contains crystalline silica (cancer). m... m
“5. Potable Water Systems
“. . . . Water and the conveyance and dispensing devices which contain and release lead and other chemicals . . . into drinking water include, but are not limited to: steel water pipes, water meters, solder used with copper plumbing, brass fittings, brass faucets, water purification processes and drinking fountains. [f] . . . m
“6. Paints, Finishes and Coatings
“Currently used paints, stains and coatings include but are not limited to: [Brand name] Aerosol Primers and Top Coats which contain toluene, [Brand name] Enamels which contain benzene” [and on and on through all the brands in a paint store and the carcinogens they contain],
“7. Furniture, Furnishings and Window Treatments
“.. . . Carpeting and furniture construction materials include foams, metals, treated wood, fabrics, coatings, rubber parts and plastics and vinyl which contain Designated Chemicals including, but not limited to the following: Foams used in couches, seat cushions, carpet pads contain and emit methylene chloride (cancer), toluene diisocynate (cancer), and soots, tars and mineral oils (cancer). ... [f] ... [f]
“8. Brass Hardware, Metal Surfaces, and Electrical Wiring/Fixtures
“Brass keys, door knockers, door knobs and other entry way hardware, as well as decorative railings, fixtures, faucets, doors and furniture handles contain lead (cancer, developmental toxicity and other reproductive harm). . . . Fencing and other barrier hardware including safety railings and gates may be coated with colored polyvinyl chloride (PVC) which contains vinyl chloride monomer (cancer) . . . lead and lead compounds . . . cadmium and cadmium compounds . . . and cobalt and cobalt oxide (cancer).
“Lighting fixtures including electrical wires associated with fixtures located in apartments and common areas result in exposures to Designated Chemical emissions from PVC insulated wiring. . . . Exposures due to handling such insulated wire which contains vinyl chloride monomer .. . diethyl ethylphthalate . . . lead and lead compounds . . . cobalt and cobalt oxide . . . and cadmium and cadmium compounds .... [f] ... [1]
“9. Natural Gas, Liquid Fuel Gases and Fuel Oil Combustion
“Natural Gas and other liquid fuel gases including, but not limited to Compressed Natural Gas (CNG), Liquefied Natural Gas (LNG) and Liquefied Petroleum Gas (LPG) and Propane contain benzene . . . toluene . .. and radon (cancer); when such fuels are burned, combustion products are created and emitted which include, but are not limited to: carbon monoxide (developmental toxicity), formaldehyde . . . acetaldehyde . . . and soots ....
“10. Automobile Parking Facilities, Designated Loading/Unloading Locations and Transportation Services
“. . . . These Properties have and operate automobile parking facilities, and designated bus and other public transportation and commercial vehicle loading/unloading areas which expose tenants, visitors, guests, invitees, contractors and employees to Designated Chemicals emitted from vehicle exhausts.
“11. Apartment Cleaning and Maintenance
“Specialty Cleaning Products such as carpet and floor cleaners, paint strippers and graffiti removers, including, but not limited to [brand name] Carpet Steam Cleaner . . . which contains nitriloacetic acid (cancer); [brand name] Aerosol Wax Stripper which contains ethylene oxide (cancer and reproductive harm); [brand name cleaners] contain ethylene oxide (cancer and reproductive harm) ....
“General Purpose Cleaning and Sanitizing Products, including, but not limited to: [brand name cleaners and disinfectants] contain chlorine and chlorine compounds which create and emit in the presence of methane and other organic materials in soiled surfaces, chloroform (cancer); [brand name cleaner] which contains benzene . . . and toluene . ... HQ ... HD
“Other Cleaning and Janitorial Activities which result in Designated Chemical exposure including, but not limited to: Tile and other floor surface polishing generates dust containing crystalline silica (cancer) and ceramic fibers (cancer); polishing of metal surfaces especially brass generates dust containing lead .... HD ... HI]
“12. Exterior and Common Areas Maintenance and Cleaning
“Emissions of materials containing Designated Chemicals from Power Tool Use including, but not limited to skill saws, circular saws, table saws, band saws, mitre saws, sabre saws and jig saws; sanders, buffers and polishers, drills, planers and routers can contain any Designated Chemical contained on or in the construction materials, surface coating and paints being shaped or sanded or from any abrasive materials .... The most common designated chemicals include: crystalline silica (cancer), lead (cancer, developmental toxicity and other reproductive harm), cadmium (cancer) asbestos . . . arsenic and its inorganic oxides ....
“Operation of Internal Combustion Engine Powered Landscaping Equipment including, but not limited to, lawn mowers, edgers, weed eaters and leaf blowers which emit gasoline engine exhaust (cancer), [f] . . . [f]
“13. Landscaping Maintenance Activities and Pesticides
“. . . These Properties engage in landscape maintenance, including the application of pesticides and fertilizers, and other maintenance activities. Fertilizers, pesticides and herbicides contain Designated Chemicals to which tenants and other persons are exposed. [][]... [][]
“Fertilizers and soil amendments applied during landscaping and which may remain thereafter on surfaces or may be emitted into the air during application or thereafter. Such fertilizing materials include, but are not limited to, mineral-based fertilizers that contain lead acetate (cancer), lead (cancer and developmental toxicity and other reproductive harm), cadmium and cadmium compounds . . . arsenic and its inorganic oxides . . . hexavalent chromium compounds . . . and mercury and mercury compounds .... m... m
“14. Electronic and Electric Equipment and Associated Cables, Wires and Batteries
“. . . Electronic equipment, including computer housings such as IBM and Apple Macintosh, keyboards, mouse devices, connecting cables, and insulated electrical wires are made from pigmented, plasticized polyvinyl chloride which contains vinyl chloride . . . lead . . . di(2-ethylhexyl) phthalate . . . and other chemicals . ... HO ... HO
“15. Office Supplies and Office Equipment
“Carbonless copy paper is used at the Properties and contains formaldehyde . . . benzene . . . toluene diisocyanate . . . and toluene .... Marking pens used at the Properties contain toluene . . . creosote . . . and ethylene glycol monoethyl ether .... Correction fluids used at the Properties are known to have contained trichloroethylene . . . and contain toluene . . . and benzene. Copy machine toner used at the Properties contains carbon black (carbon black respirable sized aerosols and extracts cause cancer).”
b. Specific Allegations in the Exhibit to the Global Notice
“After appropriate due diligence and investigation of Violator’s Properties and activities . . . such specific unlawful exposures occur in addition to the General Violations in the following ways at the Violator’s Properties.
“1. Swimming Pool/Jacuzzi/Hot Tub
“[Lists of apartment complexes and their addresses]
“. . . . These properties have swimming pools, Jacuzzis and/or hot tubs which use disinfectants containing chlorine and bromine, which react with waterborne organic compounds, like methane, to form carcinogenic compounds. HQ . . . [f]
“2. Exercise Facilities
“[Lists of apartment complexes and their addresses]
“Exercise facilities located on these Properties contain exercise and gym equipment which contain Designated Chemicals . ... HQ ... HO
“3. Indoor Clubhouse, Meeting Room or Other Indoor Common Areas, Laundry Rooms and Public Restroom Facilities
“[Lists of apartment complexes and their addresses]
“These properties have a clubhouse, meeting room, or other indoor common areas, laundry room and public restroom, which, in addition to containing and using cleaners and sanitizers, use odor cakes, air fresheners, soaps, and paper products which expose tenants, visitors, guests, invitees, contractors and employees to Designated Chemicals. HQ . . . HQ
“4. Food and Beverage Service Operations
“[Lists of apartment complexes and their addresses]
“These Properties provide and/or permit food and beverage services in common areas. Foods, water, and other beverages, which are consumed on the Property, as well as the glassware and tableware on which the food is served on the Properties cause exposure to Designated Chemicals.
“. . . . Meats contain anabolic steroids (reproductive toxicity), testosterone and its esters (cancer) .... Produce contains chloroform (cancer) due to processing water that contained chlorine disinfectant and pesticide and fertilizer residues that contain designated chemicals .... Certain grains, cereals, nuts and peanut butter contain alfatoxins (cancer) as a naturally occurring fungal toxin ....
“5. Alcoholic Beverages
“[Lists of apartment complexes and their addresses]
“These Properties serve alcoholic beverages and/or allow tenants and other persons to serve/consume alcoholic beverages in common areas.
“6. Salon
“Included Properties: None[]
“. . . . These properties have a salon where manicure, pedicure, cosmetic treatments, massages and other personal body treatments are available. The salon utilizes many products containing a variety of Designated Chemicals. ... [f]... m
. . Hair dyes in use at the salon contain lead acetate (cancer). Nail polish and its removers in use at the salon contain toluene (developmental toxicity) and benzene (cancer). Lotions and other skin treatments in use at the salon contain progesterone (cancer) and mineral oils (cancer). . . .
“7. Emergency Generators
“Included Properties: None[]
“. . . These Properties have and operate emergency generators in the event of an interruption in utility-provided electricity, and periodically operating such generators for maintenance and testing results in diesel and/or gasoline engine exhaust and fuel vapors to which tenants, guests, visitors, invitees, contractors and employees are exposed. [][]... [][]
“8. Maintenance Shop or Area
“[Lists of apartment complexes and their addresses]
“. . . In furtherance of maintenance activities, these Properties operate a maintenance area or shop. Power tools are periodically used in this area which creates dust containing Designated Chemicals to which tenants [etc.] are exposed. [][]... [f]
“9. Dry-Cleaning Facilities
“Included Properties: None[]
“. . . These Properties operate on-site dry-cleaning facilities. Dry-cleaning activities use solvents as cleaning agents that are emitted from the facilities and clothing that has been cleaned. ... [][].. . [