Litigation

Not Such A Good Way to Defend A Prop 65 Case

By Bruce Nye

Under Proposition 65 (Health and Safety Code Section 25249.5 and following), a private party enforcer (or bounty hunter) can sue any employer of ten or more persons who has exposed persons to carcinogens or reproductive toxicants on the governor?s lists.  I?ve blogged about this here, and have a white paper on the subject here.

Anyway, before filing suit, the bounty hunter has to give sixty days notification to the potential defendant and the attorney general under section 29249.7(d)(1).  That?s what the bounty hunter did in CKE Restaurants, Inc. v. Alicia Moore (January 24, 2008) ___ Cal.App.4th ___ (Fourth Dist., 2nd Civil No. B197077).

CKE, which owns a bunch of Carl?s Junior Restaurants, responded by suing Moore for declaratory relief that its restaurants were in fact in compliance with Proposition 65.  CKE contended it was basing its suit on the declaratory relief mechanism authorized by the Court of Appeal in Baxter v. Denton (2004) 120 Cal.App.4th 333.  (Full disclosure: CalBizLit?s alter ego, Bruce Nye, was co-lead counsel in the Baxter trial and lead appellate counsel.)  Unfortunately, the evidence in support of its contention consisted of test results from one set of fried food products from one restaurant in the chain.

Ms. Moore filed a special motion to strike against CKE under California?s anti-SLAPP (?strategic lawsuit against public participation?) statute, Code of Civil Procedure section 425.16.  The court held that the filing of a Proposition 65 notice is a protected activity in furtherance of her right of petition or free speech (something previously decided by the Supreme Court in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.  Thus, the defendant, CKE, had the burden of showing a probability it would prevail on the merits, or its complaint would be stricken.

The problem is, CKE had done its testing on the cheap: instead of conducting an in depth survey of all of its restaurant, sampling on different times, different places, under different conditions, CKE had its attorney go to one store, and buy orders on one occasion of a small amount of food from that single restaurant.   It then had a lab test the food and offer evidence that those samples didn?t contain enough of the chemical in question (naphthalene) to exceed the ?no significant risk level.?  Since the sampling was inadequate, and Plaintiff?s own testing showed quantities of napthalene well in excess of the NSRL, the court held that CKE had not met its burden, and its complaint was properly stricken.

California?s anti-SLAPP statute is a really interesting subject for businesses, and I'm going to try to post a white paper on the subject some day soon.

Off-topic post:

Here's some great Count Basie for your Friday:

Full post as published by CalBizLit on January 25, 2008 (boomark / email).