DiPirro v. Bondo Corp. (153 Cal. App. 4th 150, 2007)

Opinion

SWAGER, J.

Plaintiff Michael DiPirro (DiPirro) filed a complaint against defendant Bondo Corporation (Bondo) seeking enforcement of the provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (the Act) (Health & Saf. Code, §§ 25249.5-25249.13). The action was bifurcated, and respondent’s defense of a statutory exemption from the warning and enforcement provisions of the Act (§ 25249.10, subd. (c)) was first adjudicated before the court, sitting without a jury. The court found that Bondo’s product is exempt from the warning requirements of the Act, and entered judgment in favor of Bondo. Bondo’s subsequent request for attorney fees was denied.

DiPirro claims in his appeal that he was denied the right to a jury trial, and the trial court erred by finding that respondent established the warning exemption. Bondo appeals seeking reversal of the trial court’s denial of its motion for attorney fees pursuant to Code of Civil Procedure section 1021.5. We conclude that DiPirro was not entitled to a jury trial on Bondo’s affirmative defense that warnings under the Act were not required, and the trial court’s finding that Bondo established the warning exemption is supported by substantial evidence. As to Bondo’s appeal, we conclude that the denial of its motion for attorney fees was properly based upon a finding that it did not vindicate an important public right or confer a significant benefit on the general public within the meaning of section 1021.5. We therefore affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Bondo manufactures and sells exclusively to “auto makers” a product in 0.44-fluid-ounce bottles that is used for “touch-up” painting of motor vehicles. The paint contains the industrial solvent toluene, which in 1991 was listed in the Act as a reproductive developmental toxin (§ 25249.8, subds. (b), (c)). (Cal. Code Regs., tit. 22, § 12000.) The designation of toluene as a chemical known to cause reproductive toxicity triggered the mandate of Proposition 65 that “No person in the course of doing business shall knowingly and intentionally expose' any individual” to the chemical “without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.” (§ 25249.6.) Bondo has always been aware that its touch-up paint contained the listed chemical toluene. Since at least 1997, Bondo placed “Proposition 65 warnings” on its “Material Safety Data Sheets” included with wholesale shipments of the touch-up paint to automobile manufacturers, but no warnings were placed on the individuál paint bottles.

On November 30, 2001, DiPirro filed a complaint for injunctive relief and civil penalties against Bondo that alleged violation of the Act through the manufacture and distribution of touch-up paints containing toluene without the required “clear and reasonable warnings” of reproductive toxicity. DiPirro requested relief in the nature of an injunction to prohibit Bondo from selling or distributing the touch-up paints without the required warnings, civil penalties, and restitution, along with attorney fees.

Bondo answered the complaint with a general denial and numerous affirmative defenses, including the seventh affirmative defense which alleged that any exposure to toluene that occurs as a result of reasonably anticipated use of its touch-up paint products poses “ ‘no significant risk’ of causing cancer or reproductive toxicity to users of those products, within the meaning of Health and Safety Code § 25249.10(c).” Subdivision (c) of section 25249.10 grants a warning exemption for products with listed chemicals if the defendant proves an exposure level 1,000 times less than the maximum specified dose level at which a chemical has no observable reproductive effect (Cal. Code Regs., tit. 22, § 12801, subd. (c)).

The parties stipulated to bifurcation of the proceedings, “with the trial of issues relating to Bondo’s seventh affirmative defense—which may be dis-positive—to be tried first.” Thereafter, upon motion by Bondo the trial court struck DiPirro’s demand for a jury trial.

The trial then proceeded before the court primarily on the basis of the declarations and testimony of experts. The undisputed evidence established that for inhaled toluene the exposure level of the warning exemption of section 25249.10, subdivision (c), is set at 13,000 micrograms per day. The focus of the trial was upon studies, tests and surveys concerning the nature and level of exposure to toluene by persons using Bondo’s touch-up paints.

Evidence was presented on the essential nature and effects of toluene. Toluene is an aromatic hydrocarbon often used as a solvent that is found in gasoline, paint products, cosmetics, adhesives, and inks. Toluene promotes the flow and coating of pigments onto a surface, then evaporates and dries quickly, even at cold temperatures and high humidity. Exposure occurs as the result of airborne inhalation of the chemical through the bloodstream. The primary toxic effect of toluene is neurotoxicity. At very high concentration levels toluene may have a narcotic impact upon the central nervous system to produce “giddy” behavior. At “lower doses,” toluene has an effect on reproductive developmental processes in the body. According to studies on animals, gestational exposure to the chemical at particular stages of development of a fetus may cause identified anomalies: intrauterine growth retardation, premature delivery, low birth weight, retarded skeletal development, kidney abnormalities, congenital gastrointestinal, urogenital, central nervous system, craniofacial, and cardiac malformations, along with postnatal interruptions in neurobehavioral development. The evidence of developmental toxicity of toluene in humans is limited, but strongly indicates adverse effects upon fetus development resulting from toluene abuse by pregnant women. The evidence does not indicate maternal toxicity of toluene in humans.

By 1990, the California Department of Health Services decided to list toluene as a reproductive developmental toxicant under Proposition 65. In 1991 toluene was “placed on the safe harbor list” of chemicals known to cause reproductive developmental toxicity. A “safe harbor” or “maximum allowable dose level,” the “MADL,” of 13,000 micrograms per day—below which the warning requirements of Proposition 65 are not triggered—was established for toluene by multiplying the figure of 7,000 micrograms per day of ingested toluene by nearly twice, to account for the 50 percent rate of absorption of an inhaled chemical. (§ 25249.10, subd. (c); Cal. Code Regs., tit. 22, §§ 12801, subds. (a), (b)(1), (c), 12803.) The MADL is the level at which no observable reproductive developmental effects will occur upon exposure to the chemical at a level 1,000 times higher. (Cal. Code Regs., tit. 22, §§ 12801, subds. (b)(1), (c), 12805.)

The remaining evidence offered at trial dealt with the tested levels of exposure to toluene that result from use of Bondo’s touch-up paint. The formula for calculating or quantifying exposure is rather simple and straightforward. As the experts agreed, the implementing regulations specify that for purposes of section 25249.10, subdivision (c), the level of exposure to a listed chemical that causes reproductive developmental toxicity must be determined by multiplying the measured concentration level of the chemical in the product—in this case, the amount of toluene in a unit of air—times the inhalation rate, times the duration of exposure. (Cal. Code Regs., tit. 22, § 12821, subd. (b).) The regulations specify that for toluene the inhalation rate is 20 cubic meters per day, or 0.833 cubic meters per hour, for a “woman with conceptos.”

The calculation becomes more complex, however, when measuring the inhalation of a chemical like toluene during use of a consumer product like Bondo’s touch-up paint. The level of toluene in the “breathing zone” around the head must be measured, along with the amount that is then exhaled. The rate of breathing and level of intake per unit of time must be taken into account. Both the immediate, more acute exposure and the cumulative exposure “over time” must be measured. The rate of dilution and dispersal of the chemical into the air must be known—for instance, toluene evaporates into the air “very rapidly,” within minutes. Any testing must also consider the manner in which the product is used, including the directions for use that accompany the product. All the potential sources of toluene from the touch-up paint must be measured: the gas diffusing out of the bottle; the amount emanating from the area on which the paint is being applied; the exposure from any other areas that have been “just painted"; and the paint on the wand or brush. Thus, a “very detailed protocol” must be established in testing to account for these factors.

Only scientifically approved methods and procedures may be followed to quantify an exposure under the Act. A hierarchy of accepted methodologies has been established by the California Department of Health Services (CDHS). The parties agreed that the “appropriate sampling protocol for assessing toluene concentration in the air is NIOSH[] 1501,” the “top-tiered method” established by the CDHS for toluene exposure testing. The parties’ experts both reviewed existing studies and performed numerous tests under various conditions to measure exposure to toluene from use of Bondo’s touch-up paints in accordance with the NIOSH 1501 protocol. The results of the surveys and testing present evidence that is conflicting, but fall within certain defined parameters.

Bondo’s expert in the field of toxicology, human health risk and exposure assessment, Dr. Michael Lakin, compiled and reviewed surveys of the reasonably anticipated use of automotive touch-up paints to determine exposure conditions. Dr. Lakin concluded, based upon his review of the studies and expert depositions provided to him, that the “great majority” of consumers use touch-up paint sparingly for only a few small nicks or scratches, outside or in an open garage, complete the painting process within a minute, then immediately reseal the container and move away from the vehicle once painting is completed.

Tom Shellworth, the owner of an automobile dealership in Vacaville for the past 16 years who had often personally used touch-up paint and observed “countless applications of touch-up paint by dealership personnel and outside vendors,” in addition to inspecting “thousands” of “touch-up repairs” performed upon vehicles by consumers, essentially agreed with Dr. Latin’s characterization of the customary nature of the use of touch-up paint. Shellworth offered his opinion that the “vast majority” of consumers do not ever use touch-up paint, or if they do, make limited use of the paint for one or two chips for “about 10 seconds.” Shellworth also stated that due to the variation in use of touch-up paint, description of the “average or typical” extent of repair was difficult. In his testimony Shellworth did not refer to the conditions under which touch-up paint is applied, other than to very generally assert that it was used both inside and outside.

In an attempt to describe the use of touch-up paint by consumers Bondo presented the results of a survey distributed by its counsel to car dealerships in California—referred to as the “Nossaman survey.” The survey enlisted assistance from car dealerships in the form of responses to inquiries about the “average” or “typical” use of touch-up paint. A cover letter that accompanied the survey advised the dealerships of Bondo’s defense of a “Proposition 65 lawsuit” filed by a “bounty hunter,” DiPirro, and the intended “meritless” “follow-up lawsuits” against dealerships and others in the industry. The letter also mentioned the specific need to prove that “touch-up paint does not expose the average consumer to levels of toluene and other chemicals that exceed 13,000 micrograms per day.” A summary of the responses, more than 300 in number, indicate that the paint is typically applied in one or two coats of paint to a few small chips or scratches of less than an inch in length by a service person at the dealership, usually outside or less often in the service bay, for between five seconds and a minute. Most consumers who purchase touch-up paint never use it, and if they do the quality of the work is poor. The dealerships also noted in their responses that a small number of consumers used the paint inappropriately for larger scratches or chips.

DiPirro’s expert criticized the partiality of the Nossaman survey, suggesting that it was obviously conducted and structured as a response to an “adversarial situation.” He asserted that the results of the Nossaman survey were skewed by the improper “target population” of car dealerships rather than “the average consumer,” and the nature of the questions.

DiPirro also conducted an “on-line consumer survey” of touch-up paint use, referred to as the “Cooper-Roberts survey.” Three hundred fifty-three (353) responses to questions were received, which were compiled into a summary of the nature of use of touch-up paint by average consumers: about 74 percent used the paint once a year or less; 88 percent used the paint only on one vehicle; only 21 percent of the use occurs in a covered carport or in a garage; less than half of the people used the paint on scratches; nearly half of the people who painted a scratch on their car from a key had a scratch one foot long or more; 70 percent applied the paint to three or fewer scratches; 80 percent painted three or fewer nicks; 80 percent used less than one-quarter of the bottle; typically the paint was applied by dipping the wand into the bottle one to two times per application; 81 percent expressed no health concerns associated with use of the paint.

Bondo offered evidence of practical field tests of toluene exposure from James Embree, the principal toxicologist for the environmental sciences and engineering consulting firm Geomatrix Consultants, and an expert in the field of “Proposition 65-required methods for determining exposures to listed chemicals.” In 2003, Dr. Embree designed, supervised and reviewed a series of three “touch-up paint application tests,” referred to collectively as the “Geomatrix Paint Application Study” (Geomatrix Study), to measure the exposure to toluene of an “average consumer” of Bondo’s touch-up paint under “conservative and varied ‘real world’ conditions.” The tests followed some accepted assumptions, protocols and methodologies related to toluene exposure from touch-up paint, including the NIOSH 1501 first-tier method of analysis, and were implemented with “a series of actual-use measurements” based on “conservative factors” of application. The touch-up paint used was one with approximately 27.5 percent toluene, which is “toward the upper limit of toluene routinely used in Bondo touch-up paint.”

Three tests in the 2003 Geomatrix Study measured exposure in varying environments under different conditions. The first test: in a three-car open garage, with four painted surfaces attached to the sides of a car, each about one-half inch square, and each painted for three and one-half minutes, followed by the painter remaining within several feet of the car for another 15 minutes, for a total of 30 minutes of exposure. The second test, comparable to the first, but conducted in a two-car garage, and with the addition of two more scenarios with the garage door closed: one with painting of a “ding approximately 1/8 to 1/4 inch in diameter and 3 one-inch scratches, and the other to touch-up a one-half square inch area.” The third test: conducted in a one-car open garage, with the application of paint to “one 6-inch scratch” and “three dings” as indicated in the results of DiPirro’s Cooper-Roberts survey of the “reasonably anticipated rate of exposure” for the “average users” of the product, with the added assumptions of application of two coats over an eight-minute period, seven minutes for each coat of the paint to dry while the painter remained in the area of the car, for a 30-minute total period of exposure. In each of the three studies, one collection tube was placed in the painter’s breathing zone as the NIOSH 1501 method requires, and a second or “back” tube collected samples from ambient air that may have “gone through the first tube.” Due to the greater area painted and the longer duration of painting, Dr. Embree opined that measured concentrations were far higher than any reasonably anticipated use by the average consumer, so the conditions of testing assured results in excess of any likely consumer exposure. However, the airflow rates were twice that specified in the NIOSH manual.

All the samples collected during the three tests were sent to an approved laboratory for detection of the concentration of toluene in accordance with the NIOSH 1501 method. No evidence of “blow-by” or “breakthrough” of chemicals from the first breathing tubes was found in the second sampling tubes. Exposure levels were then calculated from the measured concentration results of the tests according to the “Proposition 65 specified formula” for toluene: multiplication of the concentrations, times the specified inhalation rate, times the conservative 30-minute period of exposure. Even without adjustment for averaging over a 270-day gestation period, all three of the tests conducted for the 2003 Geomatrix Study indicated exposure levels substantially below—only 0.4 to 16 percent of—the MADE for toluene of 13,000 micrograms per day. Averaging the exposure over a nine-month gestation period resulted in calculated levels between 0.002 and 0.06 percent of the MADE, or 1,700 to 65,000 times less than the MADE.

The Geomatrix Study was repeated in 2004, with slight variations in the conditions of application of paint to account for objections to the 2003 study. Three additional tests were done: one with the vehicle in a garage with the door closed, another with the garage door open, and a third with the vehicle in the driveway just outside an open garage. The painted test panels were confined to one side of the car, and ranged in size from one-quarter- to one-half-inch dings to a “6-inch by 1/4-inch scratch.” Two coats of paint were applied, with a five-minute interval between coats, and a waiting time following the conclusion of painting, for a total exposure duration of 28 minutes. The air temperature was lower than the 2003 test, which resulted in theoretically slower evaporation, but the humidity was slightly higher. A new paint container was used for each test, and the weight of the paint used during each test was calculated, unlike the prior study. Airflow rates were half that used in the 2003 Geomatrix Study, 0.2 liters per minute as approved in the NIOSH manual. Again, the tested exposure levels of toluene in all three tests were far below the MADE, and even “slightly lower” than in the 2003 Geomatrix Study.

Dr. Lakin performed his own “EnSIGHT Study” for Bondo to quantify exposure to toluene from touch-up paint. In doing so, he consulted the measured data and analytical methods from the “Nail Polish study” conducted by Clayton Engineering for the Attorney General’s Office using protocols developed by the CDHS. He considered the Nail Polish study “acceptable for this purpose” due to the “great similarity in use and composition of nail polish and touch-up paint.” A distinction in the Nail Polish study is that the CDHS-approved Method 4000 protocol was used, which is similar to the tier-one NIOSH 1501 protocol, with the only modification being the use of a badge with charcoal on it to absorb the air rather than drawing the air through a tube. Dr. Lakin testified that the two methods are “equally efficient” at detecting exposure, and DiPirro’s expert agreed that the two methods are “equivalent.”

In the Nail Polish study the exposure to toluene by both the manicurist and customer were measured from over 500 samples collected under varied conditions, with the customer monitored only for the duration of the appointment—about one hour—while the manicurist was monitored for the entire workday. The average concentration of toluene in the samples was then multiplied by the amount of air breathed by the person during the time present in the salon. Even upon application of a “more conservative inhalation rate”—that is, a higher rate than the actual level—and without adjusting for exposure over the nine-month gestation period, the exposure results of the Nail Polish study were below the MADE figure: 570 micrograms per visit for the customer, and 9,023 micrograms per workday for the technician.

Dr. Lakin asserted that the Nail Polish study was conducted in compliance with tier-one testing methods and protocols that have the requisite wide acceptance of reliability within the scientific community. He also found that the data from the Nail Polish study provided a “representative and conservative basis” for the evaluation of the “reasonably anticipated” consumer exposure to toluene in the present case. He noted that some environmental factors associated with the application of nail polish—specifically, use of the product indoors, with fewer air exchanges, and at lower temperatures and humidity levels—resulted in more conservative, higher exposure levels than the conditions which accompany use of touch-up paint.

Dr. Lakin also gathered information from other studies on the range of exposures to touch-up paint. Finally, he reviewed the Geomatrix Study of Dr. Embree, which he found to be consistent with “standard guidance, procedures and methodologies recognized and accepted by experts in the field,” and in compliance “with 22 C.C.R. § 12901(b).” According to Dr. Lakin the results of the Geomatrix Study, which he reiterated are “entirely consistent” with the findings of the Nail Polish study, provide a “sound technical basis for evaluation of exposure” to toluene.

Using the “extremely conservative values” from the Nail Polish study that are “more health protective,” along with the Geomatrix Study results and other data from scientifically accepted practices, some of it provided by DiPirro, Dr. Lakin calculated an exposure concentration of toluene in the EnSIGHT Study that encompassed all but a “very small proportion of the users of touch-up paint.” His calculation of exposure included consumers of touch-up paint who used the paint indoors, in an area with a very high background level of toluene, applied two or three coats of paint to the equivalent of 60 nicks and 60 scratches, for a total of about 30 minutes. He used the inhalation rate established in the Proposition 65 regulations, and the concentration level measured in the Nail Polish study that he believed was “overly conservative when compared to the application of touch-up paint.” The result was an exposure concentration level higher than “any reasonably foreseeable circumstances for the average consumer.”

Dr. Lakin thereby arrived at a “bounding estimate” or “bounding study,” which is an approach of risk assessment used to determine the exaggerated “upper end or extreme estimate of the population” that is “above what most of the population would actually receive,” and constitutes a “very rare event.” He found that the reasonably anticipated exposure to toluene of the average user of touch-up paint is no more than 75 micrograms per day, “unadjusted for exposure over the nine-month gestation period,” and only 0.3 micrograms per day when divided by the 270-day gestation period. Both figures are “well below the MADL.” He added that even DiPirro’s “own testing results” obtained during a 41-minute exposure test show exposure of 2,991 micrograms per day, or less than 25 percent of the MADL, without adjustment for the nine-month gestation period.

DiPirro relied heavily on declarations and testimony from Dr. David Brown, a public health toxicologist who is a qualified expert on human exposures to toxic chemicals from a variety of sources. Dr. Brown offered the opinion that “it is inappropriate to use the nine months of gestation as the basis for averaging to derive a pregnant woman’s reasonably anticipated rate of exposure.” He stated that according to current studies toluene “produces teratogenesis,” but not as a “frank teratogen,” rather as a “neurodevelopmental toxin.” Toluene produces impacts upon the “sensitive developmental processes” of the fetus during “short-term exposures” that may not be repaired or overcome during subsequent stages of development. Thus, he maintained that “there is sufficient human and animal evidence in the literature to support that birth defects occur with short-term exposures,” and even in “one hour’s worth of exposure it is possible that damage could be elicited from which the organism cannot recover.”

Dr. Brown expressed concern with the methodologies used in the Geomatrix Studies. His primary criticisms were the lack of control or knowledge of the air “exchange rates” during exposure, and the failure to explain protocols in detail. He particularly disapproved of the use of the 0.4-liters-per-minute airflow rate in the 2003 Geomatrix Study, twice that required by the NIOSH 1501 methodology. Dr. Brown did not find any information in the scientific literature to suggest that a flow rate of 0.4 liters per minute is an appropriate or acceptable method to assess inhalation of toluene. He testified that the “higher flow rate” causes the “sample to become overloaded and blow by,” thereby reducing the amount of chemical absorbed in the sampling tube, and resulting in “underestimation” of the “exposure in the breathing zone.” He added that the 2003 Geomatrix Study did not account for the greater airflow rate by properly placing a second tube “at the end of the first tube” to measure with sensitivity any amounts of toluene that bypassed the first chamber. Dr. Brown acknowledged that a second sampling tube was used in the 2003 Geomatrix Study, but he could not “easily figure out exactly” from his review of the study how the tests were configured to report the amount collected in the second tube.

Dr. Brown further expressed dissatisfaction with some aspects of Dr. Embree’s methodology: the use of the “same person” to do all the painting “throughout the process,” the location of the painted devices attached all around the car, the insufficient sampling number, the brief departure of one of the technicians during sampling, the dilution of peak values of exposure by sampling over a “set time period,” the failure to take into account the elevated breathing rate—a quarter to a half higher than the default number—of pregnant women, the use of a figure of 25 percent volume of toluene rather than 30 percent, and the failure of the Geomatrix investigators to “chemically measure the amount of toluene” in the touch-up paint bottles or the amount of paint used for each test. He opined that the Geomatrix Study did not comply with “accepted scientific methodology,” and therefore failed to accurately “characterize a consumer’s exposure to toluene when using touch-up paint under reasonably foreseeable conditions.”

Dr. Brown also disapproved of any reliance by Dr. Lakin upon the results of the Nail Polish study “for assessing a consumer’s exposure to toluene using automotive touch-up paint.” He stated that the Nail Polish study did not follow the NIOSH 1501 protocol “in its entirety,” specifically in the use of a “passive badge” to collect the chemical rather than an “active sampling method” such as a pump to draw air into the sampling tube. He noted several other factors that he believed undermined the credibility and “appropriateness of using the Nail Polish study to infer exposures similar to those experienced by a consumer applying touch-up paint” in a garage: the absence of testing for “potentially interfering compounds” likely to be in the air in a nail salon; the lack of equivalent air exchange rates in a nail salon and a garage; the differences in environmental factors between a nail salon and a garage or driveway; and potential “hydrocarbon interferences” in a salon that “differ from those encountered in a residential garage.”

Dr. Brown devised his own exposure study that was conducted by Air Quality Sciences, Inc., an independent testing laboratory. Dr. Brown’s evaluation used two environmental test chambers that he claimed met the requirements of section 12901 of the regulations: a “Large Chamber” study and a “Small Chamber” study.

The Large Chamber study was designed by Dr. Brown to measure exposure based upon “realistic” parameters of application: three coats of touch-up paint used in a small area—less than the size of a one-car garage—upon a Plexiglas test fixture divided into a one-inch square and further divided into four equal quarters; painting of the equivalent of “several small scratches,” with allotted time of five minutes to wait for the paint to dry between coats at a distance of 20 to 24 inches while the bottle was closed; a total exposure time of 41 minutes. The environmental test chamber controlled the variables of exchange rates, background contaminants, humidity and temperature. The chemical content of each bottle of paint was determined, and the weight of the bottle was measured and tested for toluene content before and after each application. The airflow rate was 0.2 liters per minute, as approved in the NIOSH 1501 tier-one method. Samples of toluene exposure were collected from multiple charcoal sampling tubes draped around the mouth, nose, and chest of the painter. Dr. Brown asserted the results provided a “lower bound estimate of ‘real’ exposure,” of approximately 3,000 micrograms per day, or about one-quarter of the MADL.

The Small Chamber study collected air in essentially the same manner, but in a chamber the size of a breadbox at the application site around the painter’s head to “fully assess” and quantify the magnitude of concentration of toluene during “spikes” of peak exposure while painting. The Small Chamber study was designed to simulate exposure immediately around the painter’s head while working in very close proximity to the brush or wand, without dissipation of the chemical into the air, at “discrete time intervals while using the product.” A 12-inch key scratch was painted, which was an average size based upon the results of the Cooper-Roberts online survey performed for DiPirro. Dr. Brown agreed that the Small Chamber study “wasn’t realistic,” but instead was a method of “getting another piece of information” on the “values in the breathing zone” during “sporadic or episodic exposures.” From the results of the Small Chamber study, he concluded that exposure levels of toluene would exceed the MADL.

The results Dr. Brown obtained in the Small Chamber study, along with his extrapolations from the 2003 Geomatrix Study, indicated to Dr. Brown that within the range of measurable exposures is the “possibility a person could be exposed to levels that exceed the California MADL” at “various levels of use.” He submitted two conclusions as to the exposure to toluene from touch-up paint: first, that toluene may produce neurological damage from “short-term episodic exposures” rather than “chronic dosing” over time; and second, that “a consumer, at various levels of use, will be exposed to levels of toluene that exceed the MADL.”

Dr. Lakin testified for Bondo that many of Dr. Brown’s extrapolations and assumptions were flawed. Primarily, Dr. Lakin challenged the assumption that “peak exposure at some point in time” is an appropriate measure for an assessment of the MADL of toluene. He testified that under Proposition 65 the “total exposure per day over the amount of time the exposure may occur” is the correct measurement, “not parsing it out.” Dr. Lakin explained that the NOEL (no observable effect level) and MADL figures for toluene are set according to animal studies of effects from ingestion that are related to daily intake, not momentary peak exposure. Further, he asserted that the sampling by Dr. Brown at discrete, isolated distances from the source that have changing concentrations at different points in time is not a reliable test of real exposure.

The trial court accepted the testimony and test results of Bondo’s experts. In determining the exposure of an average consumer, the court accepted a model that included 75 to 85 percent of the users of touch-up paint. No single test presented by the parties’ experts was found determinative, but the court relied upon the tests to determine “bounding estimates” to find an exposure level below which average consumers will not be at risk. Based primarily on the results of the 2003 and 2004 Geomatrix Studies, the court found that Bondo “met its burden of proof establishing that the exposure to average users of automotive touch-up paint as used in a reasonably foreseeable manner poses no significant risk as the exposure level falls below the MADL” of 13,000 micrograms per day. These appeals followed.

DISCUSSION

I. The Denial of DiPirro’s Request for a Jury Trial.

DiPirro challenges the trial court’s order that granted Bondo’s motion to strike the demand for a jury trial. After Bondo’s seventh affirmative defense was ordered to be tried first, Bondo moved to strike DiPirro’s request for a jury trial of the “Phase 1 Issues.” DiPirro opposed the motion, based upon the argument that the Phase 1 “narrow factual question of whether plaintiff can show a detectable exposure to toluene and, if so, whether the exposure is low enough to exempt Bondo from providing a warning," was “not equitable in nature,” and therefore “must be considered by a jury.” The court found that “the gist" of DiPirro’s action “is equitable,” and therefore no right to a jury trial existed. DiPirro complains that the Phase 1 issue of the section 25249.10, subdivision (c), “warning exemption” was “never available in courts of equity, did not turn on the exercise of equitable principles, and was not committed to the trial court’s discretion.” He therefore argues that he was “entitled to a jury trial to resolve this purely legal issue.”

A. The Waiver of the Right to a Jury Trial.

We first confront Bondo’s contention that DiPirro waived his right to a jury trial of the Phase 1 issues related to the warning exemption. Bondo maintains that a jury trial waiver is found in DiPirro’s opposition to the motion to strike the request for a jury trial, in which he “concedes that any penalty that may be imposed and any injunctive relief ordered shall be determined by a Court, not a jury.” Bondo’s position is that DiPirro thereby acknowledged “he wasn’t entitled to a jury trial of Phase 1 issues,” and “waived any right to appeal the trial court’s determination.” Bondo also contends that DiPirro “waived his right to assert error on appeal” by failing “to appear at the hearing to contest the court’s tentative ruling on Bondo’s motion to strike.”

“The California Constitution guarantees the right to a jury trial in a civil action at law.” (Salisbury v. County of Orange (2005) 131 Cal.App.4th 756, 764 [31 Cal.Rptr.3d 831].) Pursuant to article I, section 16 of the California Constitution, trial by jury is “ ‘an inviolate right,’ ” “ ‘a basic and fundamental part of our system of jurisprudence. ... As such, it should be zealously guarded by the courts .... In case of doubt therefore, the issue should be resolved in favor of preserving a litigant’s right to trial by jury.’ [Citation.]” (Cohill v. Nationwide Auto Service (1993) 16 Cal.App.4th 696, 699 [19 Cal.Rptr.2d 924]; see also Johnson-Stovall v. Superior Court (1993) 17 Cal.App.4th 808, 810 [21 Cal.Rptr.2d 494].) “ ‘In light of the importance of the jury trial in our system of jurisprudence, any waiver thereof should appear in clear and unmistakable form.’ Where it is doubtful whether a party has waived his or her constitutionally protected right to a jury trial, the question should be resolved in favor of preserving that right.” (Badie v. Bank of America (1998) 67 Cal.App.4th 779, 804 [79 Cal.Rptr.2d 273]; see also Conservatorship of Kevin M. (1996) 49 Cal.App.4th 79, 92 [56 Cal.Rptr.2d 765].)

Our California Constitution, article I, section 16 mandates in part that “Trial by jury is an inviolate right and shall be secured to all .... In a civil cause a jury may be waived by the consent of the parties expressed as prescribed by statute.” Code of Civil Procedure section 631, subdivisions (a) and (d) provide in part: “In civil cases, a jury may only be waived pursuant to subdivision (d). [][]... [][] (d) A party waives trial by jury in any of the following ways: [f] (1) By failing to appear at the trial. [][] (2) By written consent filed with the clerk or judge, [f] (3) By oral consent, in open court, entered in the minutes. [][] (4) By failing to announce that a jury is required, at the time the cause is first set for trial, if it is set upon notice or stipulation, or within five days after notice of setting if it is set without notice or stipulation. fíQ (5) By failing to deposit with the clerk, or judge, advance jury fees as provided in subdivision (b). [][] (6) By failing to deposit with the clerk or judge, at the beginning of the second and each succeeding day’s session, the sum provided in subdivision (c).”

Thus, “As a matter of constitutional right [DiPirro] was entitled to a jury unless he ‘waived such right in the manner prescribed by law’ [citation]; ‘the manner prescribed by law’ specifically refers to the provisions for jury waiver in civil cases. They constitute the exclusive modes of waiver in civil cases. It has long been held in this state that a jury trial may not be waived by implication; it may only be waived affirmatively and in the manner designated by the provisions of section 631, Code of Civil Procedure.” (City of Redondo Beach v. Kumnick (1963) 216 Cal.App.2d 830, 835 [31 Cal.Rptr. 367].) “And ‘[n]o waiver results from going to trial after the erroneous denial of a jury, if the party makes a proper objection.’ [Citation.]” (Cohill v. Nationwide Auto Service, supra, 16 Cal.App.4th 696, 700.)

We would be hard pressed under any circumstances to find an express waiver of a jury trial right in DiPirro’s opposition to a request to strike his demand for jury trial. As we read DiPirro’s concession, it related only to the contingent issues of “any penalty that may be imposed” or any “injunctive relief ordered” by the trial court following the Phase 1 trial. DiPirro acknowledged that penalty and injunctive relief matters were equitable in nature, but argued that the trial of Bondo’s “liability” under the Act “must be considered by a jury.” We do not find that DiPirro’s limited concession was a waiver of a jury trial of the Phase 1 part of the proceeding. The acknowledgement of the equitable nature of the penalty and injunctive relief issues expressed by DiPirro in his opposition to Bondo’s request to strike a jury trial was not a “written consent filed with the clerk or judge” of a jury trial waiver within the meaning of Code of Civil Procedure section 631, subdivision (d)(2). No waiver of DiPirro’s right to a jury trial occurred.

Nor do we find that DiPirro forfeited the right to challenge the ruling on the jury trial issue by failing to appear at the hearing on the motion to contest the trial court’s tentative decision. “ ‘[A] reviewing court ordinarily will not consider a challenge to a ruling if an objection could have been but was not made in the trial court. [Citation.] The purpose of this rule is to encourage parties to bring errors to the attention of the trial court, so that they may be corrected.’ [Citation.] The critical point for preservation of claims on appeal is that the asserted error must have been brought to the attention of the trial court.” (Boyle v. CertainTeed Corp. (2006) 137 Cal.App.4th 645, 649 [40 Cal.Rptr.3d 501]; see also In re S.B., supra, 32 Cal.4th 1287, 1293.) “ ‘It is unfair to the trial judge and to the adverse party to take advantage of an alleged error on appeal where it could easily have been corrected at trial. [Citations.]’ [Citation.]” (Cabrini Villas Homeowners Assn. v. Haghverdian (2003) 111 Cal.App.4th 683, 693 [4 Cal.Rptr.3d 192].) In a written opposition to Bondo’s motion DiPirro presented his objections to any denial of his right to a jury trial. Based upon DiPirro’s opposition, both Bondo and the trial court were aware of the precise grounds for his challenge to the proposed ruling. After the tentative decision was issued, a repetition of the same opposition at the hearing on the motion was not required to preserve the issue on appeal. No forfeiture of the issue resulted. DiPirro neither waived the right to a jury trial nor forfeited the right to assert error in this appeal.

B. DiPirro’s Right to a Jury Trial of the Exposure Exemption Issues.

We turn to DiPirro’s claim of entitlement to a jury trial of Bondo’s warning exemption defense found in section 25249.10, subdivision (c). The Act (§§ 25249.5-25249.13) does not grant any statutory right to a jury trial in enforcement actions, so DiPirro must rely on the right to jury trial provided by article I, section 16 of the California Constitution. Code of Civil Procedure section 592 also specifically provides that “In actions for the recovery of specific, real, or personal property, with or without damages, or for money claimed as due upon contract, or as damages for breach of contract, or for injuries, an issue of fact must be tried by a jury, unless a jury trial is waived . . . .”

“Where the action is one at law, there is a right to a jury trial.” (Van de Kamp v. Bank of America (1988) 204 Cal.App.3d 819, 863 [251 Cal.Rptr. 530].) “But the right applies only to a civil action as it existed at common law in 1850, when our Constitution was adopted. [Citation.] There is no right to a jury trial in an action in equity.” (Baugh v. Garl (2006) 137 Cal.App.4th 737, 740 [40 Cal.Rptr.3d 539].) “ ‘It is the right to trial by jury as it existed at common law which is preserved; and what that right is, is a purely historical question, a fact which is to be ascertained like any other social, political or legal fact.’ [Citation.]” (Wisden v. Superior Court (2004) 124 Cal.App.4th 750, 754 [21 Cal.Rptr.3d 523].) “If the action is essentially one in equity and the relief sought depends upon the application of equitable doctrines, the parties are not entitled to a jury trial.” (American Motorists Ins. Co. v. Superior Court (1998) 68 Cal.App.4th 864, 871 [80 Cal.Rptr.2d 621], citing C & K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal.3d 1, 9 [151 Cal.Rptr. 323, 587 P.2d 1136].)

“ ‘ “ ‘If the action has to deal with ordinary common-law rights cognizable in courts of law, it is to that extent an action at law. In determining whether the action was one triable by a jury at common law, the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case—the gist of the action. A jury trial must be granted where the gist of the action is legal, where the action is in reality cognizable at law.’ ” [Citation.] On the other hand, if the action is essentially one in equity and the relief sought “depends upon the application of equitable doctrines,” the parties are not entitled to a jury trial.’ [Citation.]” (Caira v. Offner (2005) 126 Cal.App.4th 12, 23-24 [24 Cal.Rptr.3d 233]; see also Baugh v. Garl, supra, 137 Cal.App.4th 737, 740.)

“ ‘Although . . . “the legal or equitable nature of a cause of action ordinarily is determined by the mode of relief to be afforded” [citation], the prayer for relief in a particular case is not conclusive [citations]. . . .’ [Citation.]” (Walton v. Walton (1995) 31 Cal.App.4th 277, 287 [36 Cal.Rptr.2d 901].) “Analysis begins, as the California Supreme Court has instructed, with the historical analysis, not with the pleadings; ‘the court is not bound by the form of the action but rather by the nature of the rights involved and the facts of the particular case . . . .’ [Citation.]” (Wisden v. Superior Court, supra, 124 Cal.App.4th 750, 757.) “The issue whether [DiPirro] was constitutionally entitled to a jury trial” is a “pure question of law that we review de novo.” (Caira v. Offner, supra, 126 Cal.App.4th 12, 23.)

We begin our analysis with the obvious point that a statutory enforcement action under the Act is not one that existed under common law in 1850. That, of course, is not the end of the inquiry. “[T]he right to a jury trial does not entirely depend upon the existence of a particular right of action in 1850. [Citation.] Rather, it exists when a current case is of the same ‘class’ or ‘nature’ as one which existed in 1850.” (Jefferson v. County of Kern (2002) 98 Cal.App.4th 606, 613-614 [120 Cal.Rptr.2d 1]; see also Asare v. Hartford Fire Ins. Co. (1991) 1 Cal.App.4th 856, 867 [2 Cal.Rptr.2d 452].) “[T]he fact that the particular statute or offense was not in existence when the Constitution was adopted is not determinative; if the same type or class” of action “called for a jury trial, the right is carried over to the new statute.” (People v. Anderson (1987) 191 Cal.App.3d 207, 219 [236 Cal.Rptr. 329].) A statute that “ ‘ “was enacted since the adoption of the Constitution” ’ ” is not for that reason outside the scope of “ ‘ “the guaranty of trial by jury. The constitutional right of trial by jury is not to be narrowly construed. It is not limited strictly to those cases in which it existed before the adoption of the Constitution but is extended to cases of like nature as may afterwards arise. It embraces cases of the same class thereafter arising. . . . The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions.” ’ [Citation.]” (Jefferson v. County of Kern, supra, at p. 614, italics omitted.) The right to trial by jury is not inapplicable to causes of action based on statutes, but applies to actions enforcing statutory rights “if the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law.” (Curtis v. Loether (1974) 415 U.S. 189, 194 [39 L.Ed.2d 260, 94 S.Ct. 1005].) Where, as here, we are deciding if a jury trial is required and have been presented with a statutory scheme that was not known at common law in 1850, as with any other action we look to the essence of the rights conferred and the relief sought—“ ‘the “gist of the action.” If the “gist” is legal, as opposed to equitable, we have recognized a right to jury trial. [Citations.]’ [Citation.]” (Asare v. Hartford Fire Ins. Co., supra, at p. 867.) We thus first “ ‘compare the statutory action to 18th-century actions brought in the courts of England prior to the merger of the courts of law and equity,’ ” and then “ ‘examine the remedy sought and determine whether it is legal or equitable in nature.’ ” (Granfinanciera, S. A. v. Nordberg (1989) 492 U.S. 33, 42 [106 L.Ed.2d 26, 109 S.Ct. 2782], quoting Tull v. United States (1987) 481 U.S. 412, 417-418 [95 L.Ed.2d 365, 107 S.Ct. 1831].)

We thus proceed to examine the statutory scheme to determine the “gist of the action” pursued by DiPirro. While an action under the Act does not directly implicate specific, recognized equitable doctrines, the statutory scheme embodied in the Act is itself thoroughly infused with equitable principles that must be considered and adjudicated in an enforcement action. The essential character and purpose of the Act is equitable. Proposition 65 is “ ‘a remedial statute intended to protect the public,’ ” which seeks to prevent contamination of sources of drinking water and requires “businesses to warn individuals about carcinogens and reproductive toxins to which they are exposed through consumer transactions, employment, and the environment.” (Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 461-462, [110 Cal.Rptr.2d 627].)

The foremost consideration before us is that the remedies sought through an enforcement action under the Act are equitable in nature. “Determining whether the gist of a claim is in law or equity ‘depends in large measure upon the mode of relief to be afforded.’ [Citation.]” (Asare v. Hartford Fire Ins. Co., supra, 1 Cal.App.4th 856, 867; see also Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 697 [59 Cal.Rptr.2d 303].) An action that seeks to enforce the consequences of the listing of a chemical fundamentally seeks a form of declaratory relief—that the product requires a warning under the Act—which is equitable in nature and does not carry with it the guarantees of a jury trial. (See Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 91 [40 Cal.Rptr.3d 34]; Caira v. Offner, supra, 126 Cal.App.4th 12, 26-27; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1241 [19 Cal.Rptr.3d 416]; Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th 333, 357-358.)

As the Act specifically authorizes in section 25249.7, DiPirro requested in his complaint both injunctive relief to prevent the sale of Bondo’s product and civil penalties against Bondo. Injunctive relief is invariably an equitable remedy, and a demand for civil penalties does not in itself require a jury trial. (See Kwan v. Mercedes-Benz of North America, Inc. (1994) 23 Cal.App.4th 174, 184 [28 Cal.Rptr.2d 371].) “ 1 “The fact that damages is one of a full range of possible remedies does not guarantee . . . the right to a jury ....”’ [Citation.]” (Caira v. Offner, supra, 126 Cal.App.4th 12, 24; see also Baugh v. Garl, supra, 137 Cal.App.4th 737, 741.) We recognize “the ‘general rule’ ” that monetary relief is a legal remedy, “and an award of statutory damages may serve purposes traditionally associated with legal relief, such as compensation and punishment.” (Feltner v. Columbia Pictures Television, Inc. (1998) 523 U.S. 340, 352 [140 L.Ed.2d 438, 118 S.Ct. 1279].) However, “ ‘[a]n action is one in equity where the only manner in which the legal remedy of damages is available is by application of equitable principles.’ [Citation.]” (Interactive Multimedia Artists, Inc. v. Superior Court (1998) 62 Cal.App.4th 1546, 1555 [73 Cal.Rptr.2d 462]; see also Asare v. Hartford Fire Ins. Co., supra, 1 Cal.App.4th 856, 867; Van de Kamp v. Bank of America, supra, 204 Cal.App.3d 819, 865.) Damages sought in the nature of civil penalties for violations of the Act are assessed upon consideration of articulated factors that do not primarily take into account any harm suffered by the plaintiff. (§ 25249.7, subd. (b)(2).) Where, as here, the statute has delegated the assessment of civil penalties in accordance with a highly discretionary calculation that takes into account multiple factors, this is the kind of calculation traditionally performed by judges rather than a jury, and does not require a jury trial for that purpose in a civil action. (See Tull v. United States, supra, 481 U.S. 412, 427.)

The Act is informational and preventative rather than compensatory in its nature and function. The statutory damages available under the Act in the nature of civil penalties do not grow out of a claim for moneys due and owing or for personal harm or property damages that have resulted from discharge of pollutants or other toxic chemicals, which are actions triable by a jury at common law. (Cf. Tull v. United States, supra, 481 U.S. 412, 417—422 (Tull); Wisden v. Superior Court, supra, 124 Cal.App.4th 750, 758-760; Grossblatt v. Wright (1951) 108 Cal.App.2d 475, 485-86 [239 P.2d 19].) Rather, Proposition 65 is distinguishable in its fundamentally equitable purpose and remedy: to facilitate the notification of the public of potentially harmful substances, so informed decisions may be made by consumers on the basis of disclosure. “Citizens bringing [Proposition 65] suits need not plead a private injury and instead are deemed to sue ‘in the public interest.’ [Citation.]” (National Paint & Coatings Assn. v. State of California (1997) 58 Cal.App.4th 753, 757 [68 Cal.Rptr.2d 360].) An award of civil penalties under the Act is a statutory punitive exaction determined on the basis of equitable principles, designed to deter misconduct and harm, not to compensate the plaintiff for actual damages sustained. (See Korea Supply Co. v. Lockheed Martin Corp. (2003) 29 Cal.4th 1134, 1144 [131 Cal.Rptr.2d 29, 63 P.3d 937]; Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 977 [132 Cal.Rptr.2d 635]; Day v. A T & T Corp. (1998) 63 Cal.App.4th 325, 338 [74 Cal.Rptr.2d 55]; Kwan v. Mercedes-Benz of North America, Inc., supra, 23 Cal.App.4th 174, 184; Troensegaard v. Silvercrest Industries, Inc. (1985) 175 Cal.App.3d 218, 226-228 [220 Cal.Rptr. 712].) The primary right to bring an action for civil penalties pursuant to the Act is also given to the state rather than individuals seeking compensation. (§ 25249.7, subd. (c).) Moreover, the Act does not have a standing requirement; a plaintiff need not allege or prove damages to maintain an action under Proposition 65. As such, the statutory remedies afforded by the Act, including civil penalties, are not damages at law, but instead constitute equitable relief appropriate and incidental to enforcement of the Act, which do not entitle the plaintiff to a jury-trial. (See McHugh v. Santa Monica Rent Control Bd. (1989) 49 Cal.3d 348, 382 [261 Cal.Rptr. 318, 777 P.2d 91]; Beasley v. Wells Fargo Bank (1991) 235 Cal.App.3d 1383, 1392-1393 [1 Cal.Rptr.2d 446].) The “incidental award of monetary damages by a court in the exercise of its equitable jurisdiction does not convert the proceeding into a legal action.” (Snelson v. Ondulando Highlands Corp. (1970) 5 Cal.App.3d 243, 259 [84 Cal.Rptr. 800].)

Finally, even without consideration of the specific remedies provided in section 25249.7, we conclude that the gist of DiPirro’s statutory enforcement action given recognition and implementation in the Act is to enjoin or prevent the knowing distribution, sale and use of products with listed dangerous chemicals, unless the requisite warnings are provided. (See Dowhal v. SmithKline Beecham Consumer Healthcare (2004) 32 Cal.4th 910, 918 [12 Cal.Rptr.3d 262, 88 P.3d 1]; Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th 333, 355.) Although DiPirro could not have pursued this particular statutory action under the Act in 1850, the bulk of the relief sought here was cognizable at common law as an equitable action to abate a public nuisance. (See Arciero Ranches v. Meza (1993) 17 Cal.App.4th 114, 124-125 [21 Cal.Rptr.2d 127]; Wolford v. Thomas (1987) 190 Cal.App.3d 347, 353-354 [235 Cal.Rptr. 422].) “The essence of an action to abate a public nuisance and for injunctive relief is equitable and there is no right to a jury trial.” (People v. Englebrecht (2001) 88 Cal.App.4th 1236, 1245 [106 Cal.Rptr.2d 738]; see also People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1102 [60 Cal.Rptr.2d 277, 929 P.2d 596]; County of Santa Clara v. Atlantic Richfield Co. (2006) 137 Cal.App.4th 292, 310 [40 Cal.Rptr.3d 313]; People v. Pacific Landmark, LLC (2005) 129 Cal.App.4th 1203, 1211 [29 Cal.Rptr.3d 193].) DiPirro is not entitled to a jury trial on his enforcement action in equity under section 25249.7. (Stell v. Jay Hales Development Co. (1992) 11 Cal.App.4th 1214, 1220 [15 Cal.Rptr.2d 220]; see Van de Kamp v. Bank of America, supra, 204 Cal.App.3d 819, 865; Wolford v. Thomas, supra, at p. 354.)

We further conclude that the trial court’s bifurcation of the proceeding and separate initial adjudication of Bondo’s warning exemption defense did not transform the case into an action at law or require a jury trial. We acknowledge the rule that the right to a jury trial may not be abrogated by the trial court’s severance of equitable claims from legal claims that have been joined in the same action. (Walton v. Walton, supra, 31 Cal.App.4th 277, 292; Selby Constructors v. McCarthy (1979) 91 Cal.App.3d 517, 527 [154 Cal.Rptr. 164].) Where a “mixed bag” of legal and equitable claims is presented in a case, a court trial of the equitable claims first may obviate the necessity of a jury trial on the legal claims, but otherwise the plaintiff cannot be denied the right to a jury trial on the legal causes of action. (Nwosu v. Uba, supra, 122 Cal.App.4th 1229, 1238; see also Jefferson v. County of Kern, supra, 98 Cal.App.4th 606, 619-620; Van de Kamp v. Bank of America, supra, 204 Cal.App.3d 819, 863.) If “there are equitable and legal remedies sought in the same action, the parties are entitled to have a jury determine the legal issues unless the trial court’s initial determination of the equitable issues is also dispositive of the legal issues, leaving nothing to be tried by a jury.” (American Motorists Ins. Co. v. Superior Court, supra, 68 Cal.App.4th 864, 871, italics omitted.)

But here, Bondo’s warning exemption defense was not a separate legal claim or cause of action, nor was the trial a special proceeding that engendered its own right to a jury trial. (See Cornette v. Department of Transportation (2001) 26 Cal.4th 63, 76-77 [109 Cal.Rptr.2d 1, 26 P.3d 332].) It was just what it purported to be, an affirmative defense to the primary and singular equitable action brought by DiPirro under the Act. “An action ‘is an ordinary proceeding in a court of justice by which one party prosecutes another for the declaration, enforcement, or protection of a right, the redress or prevention of a wrong, or the punishment of a public offense.’ [Citation.]” (Cornette, supra, at p. 76; see also Jefferson v. County of Kern, supra, 98 Cal.App.4th 606, 616.) For purposes of deciding the right to a jury trial, the action in the present case is DiPirro’s claim brought under the Act; the warning exemption defense is merely an affirmative defense within that action. (Jefferson v. County of Kern, supra, at p. 617.) “ ‘[A] “defense” is “[t]hat which is offered and alleged by the party proceeded against in an action or suit, as a reason in law or fact why the plaintiff should not recover or establish what he seeks[; ...[][] it is a] response to the claims of the other party, setting forth reasons why the claims should not be granted.” [Citation.]’ [Citation.] That the common meaning of ‘action’—as in an ‘action to enforce’—does not include procedural steps such as a demurrer or other defenses is illustrated by the following passage in an authoritative work: ‘The broad definition [of action] covers the following: (1) suits at law or in equity. [Citation.] (2) Certain adversary proceedings that take place during a probate proceeding. [Citation.] (3) Actions for declaratory relief. [Citations.] (4) Actions for divorce (dissolution of marriage). [Citation.]’ (3 Witkin, Cal. Procedure (4th ed. 1996) Actions, § 11, pp. 64-65.) There is nothing in this passage to suggest that a defensive matter ... is included in the term ‘action.’ ” (Salawy v. Ocean Towers Housing Corp. (2004) 121 Cal.App.4th 664, 673 [17 Cal.Rptr.3d 427], italics omitted.)

And even though issues of fact would be resolved in the adjudication of the warning exemption defense asserted under the Act, there is no “jury trial right on affirmative defenses that can be tried separately and first.” (Windsor Square Homeowners Assn. v. Citation Homes (1997) 54 Cal.App.4th 547, 558 [62 Cal.Rptr.2d 818]; see also Jefferson v. County of Kern, supra, 98 Cal.App.4th 606, 616-617.) No “California authority . . . stands directly or indirectly for the proposition that there is such a jury trial right. All the authority we have discovered and exhaustively described, assumes, without much analytical discussion, that such factual issues are naturally tried to the court.” (Windsor Square Homeowners Assn. v. Citation Homes, supra, at p. 558.) We therefore conclude that the trial court did not err by granting the motion to strike DiPirro’s demand for