Proposition 65 Amended 

Debra Robins joined the Carrick Law Group as an Associate in September 2002.  Ms. Robins has a wealth of litigation experience, most notably in environmental litigation, and is an important addition to the firm. 

On September 14, SB 471 (Sher) was passed in the California Senate, and sent to Governor Davis for signature.  The bill contains several provisions intended to weed out frivolous lawsuits, by including new requirements for plaintiffs.

The bill would require a private plaintiff to certify that there is good cause for a 60-Day Notice, based on consultation with an  appropriate expert who has reviewed the information. The information supporting the certificate must be attached to the 60-Day Notice served upon the Attorney General, and may be determined by the court at the end of the litigation.

Another provision of the bill is to require that all settlements be approved by a court.  The parties would be required to provide notice to the Attorney General, and would allow participation in settlement hearings by public prosecutors. The final bill is unclear about whether court approvals would preclude subsequent suits by public or private enforcers.

One of the major components of the bill is to establish criteria for a court to consider when assessing civil penalties available under the Act.  The way in which these penalties have been assessed in the past has been criticized, because the existing penalty provision established a high maximum penalty, no minimum penalty, and no guidance criteria for their assessment. Under the new bill, the factors a court must consider are:

(A) The nature and extent of the    violation;        

(B) The number and severity of the violations;

 (C) The economic effect of the penalty on the violator;

   (D) Good faith measures to comply taken by the violator, and the time these measures were taken;

(E) The willfulness of the violator's misconduct;

(F) The deterrent effect the penalty would have on the violator and the regulated community as a whole;

(G) Any other factor that justice may require.

The reporting requirements of Proposition 65  that require reporting of all Proposition 65 actions to the Attorney General would be expanded to expressly include settlements entered into without the filing of a complaint, and other types of complaints alleging violations of Proposition 65, such as Business & Professions Code 17200 cases. Senator Sher, and the Attorney General said they would continue a dialogue on further reform measures in the next legislative session.

Los Angeles, CA (September, 12 2002)  Residents and former residents of the area adjacent to the Belmont Learning Complex filed suit against the contractors involved in its construction, alleging that the contractors were aware of the danger of methane at the site and took no steps to mitigate it.  The complaint also alleges that the contractors concealed the dangerously high levels of methane from the fire department, and exacerbated the hazard by their activities.

The plaintiffs filed suit when District Attorney, Steve Cooley indicated that his office would not prosecute the contractors at Belmont, which he once characterized as a "crime scene."       For the Full Story                             

To View the Complaint