1999 Amendment: (1) Substituted “that violates or threatens to violate Section 25249.5 or” for “violating or threatening to violate Section 25249.5 or Section” in subd (a); (2) amended subd (b) by (a) substituting “Section 25249.5 or 25249.6” for “Section 25249.5 or Section 25249.6”; (b) substituting “two thousand five hundred dollars ($2,500) per day for each” for “$2500 per day for such”; and (c) substituting “That” for “Such” at the beginning of the second sentence; (3) substituted subd (d) for former subd (d) which read: “(d) Actions pursuant to this section may be brought by any person in the public interest if (1) the action is commenced more than sixty days after the person has given notice of the violation which is the subject of the action to the Attorney General and the district attorney and any city attorney in whose jurisdiction the violation is alleged to occur and to the alleged violator, and (2) neither the Attorney General nor any district attorney nor any city attorney or prosecutor has commenced and is diligently prosecuting an action against such violation.”; and (4) added subds (e)-(g).

2001 Amendment: (1) Substituted the section for the former section which read: “(a) Any person that violates or threatens to violate Section 25249.5 or 25249.6 may be enjoined in any court of competent jurisdiction.“(b) Any person who has violated Section 25249.5 or 25249.6 shall be liable for a civil penalty not to exceed two thousand five hundred dollars ($2,500) per day for each violation in addition to any other penalty established by law. That civil penalty may be assessed and recovered in a civil action brought in any court of competent jurisdiction.“(c) Actions pursuant to this section may be brought by the Attorney General in the name of the people of the State of California or by any district attorney or by any city attorney of a city having a population in excess of 750,000 or with the consent of the district attorney by a city prosecutor in any city or city and county having a full-time city prosecutor, or as provided in subdivision (d).“(d) Actions pursuant to this section may be brought by any person in the public interest if both of the following requirements are met:“(1) The private action is commenced more than 60 days from the date that the person has given notice of an alleged violation of Section 25249.5 or 25249.6 which is the subject of the private action to the Attorney General and the district attorney, and any city attorney or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator.“(2) Neither the Attorney General nor any district attorney nor any city attorney or prosecutor has commenced and is diligently prosecuting an action against the violation.“(e) Any person bringing an action in the public interest pursuant to subdivision (d) shall notify the Attorney General that such an action has been filed.“(f)(1) Any person bringing an action in the public interest pursuant to subdivision (d) shall, after the action is either subject to a settlement, with or without court approval, or a judgment, submit to the Attorney General a reporting form that includes the results of that settlement or judgment, and the final disposition of the case, even if dismissed. At the time of the filing of any judgment pursuant to an action brought in the public interest pursuant to subdivision (d), the plaintiff shall file an affidavit verifying that the report required by this subdivision has been accurately completed and submitted to the Attorney General.“(2) Any person bringing an action in the public interest pursuant to subdivision (d) shall, after the action is either subject to a settlement, with or without court approval, or to a judgment, submit to the Attorney General a report that includes information on any corrective action being taken as a part of the settlement or resolution of the action.“(3) The Attorney General shall develop a reporting form that specifies the information that shall be reported, including, but not limited to, for purposes of subdivision (e), the date the action was filed, the nature of the relief sought, and for purposes of this subdivision, the amount of the settlement or civil penalty assessed, other financial terms of the settlement, and any other information the Attorney General deems appropriate.“(g) The Attorney General shall maintain a record of the information submitted pursuant to subdivisions (e) and (f) and shall make this information available to the public.”

2002 Amendment: (1) Substituted “January 1, 2002,” for “the effective date of the act amending this section during the 2001-02 Regular Session” in subd (e); (2) amended subd (f)(1) by (a) substituting “subdivision (d),” for “subdivision (d) or”; and (b) adding “or any private person settling any violation of this chapter alleged in a notice given pursuant to paragraph (1) of subdivision (d),”; (3) substituted “January 1, 2002,” for “the effective date of the act amending this section during the 2001-02 Regular Session” in subd (f)(6); and (4) amended subd (h)(2) by (a) substituting “Section 128.6 or 128.7” for “Section 128.5” both times it appears; and (b) adding “, whichever provision is applicable to the action” both times it appears.

2003 Amendment: Deleted “the” after “in existence on” in subd (f)(6).

Editor's Notes- For legislative findings, declarations, severability, and effective date of initiative, see the Note to Ch 6.6 (H & S C §§ 25249.5 et seq.).

Cross References: Contaminating drinking water: H & S C § 25249.5.

Required warning: H & S C § 25249.6.

Definitions: H & S C § 25249.11.

Collateral References: 12 Witkin Summary (10th ed) Real Property §§ 894, 911.

Law Review Articles:

Environmental disclosure and reporting requirements relating to commercial sales and lease transactions. 18 CEB Real Prop L Rep 237.

Citizen suits: California's Proposition 65 and the lawyer's ethical duty to the public interest. 29 USF LR 809.

NOTES OF DECISIONS

Proposition 65 notices under the citizen enforcement provisions of H & S C § 25249.7(d) alleging violations relating to tobacco smoke and cigars were insufficient, since the notices, which simply restated the language of the applicable regulation without stating the most basic facts to describe the nature of the violation, could not be said to provide adequate information to allow the assessment of the nature of the alleged violation. While the notices suggested that the violations consisted of contact, they stated no facts describing how the contact occurred, and neither the dates of exposure nor the description of persons exposed provided any clarification. Accordingly, the notices 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. Yeroushalmi v. Miramar Sheraton (2001, 2nd Dist) 88 Cal App 4th 738, 106 Cal Rptr 2d 332, 2001 Cal App LEXIS 306.

Action filed against an oil company by the possessors of land, seeking civil penalties under Cal. Health & Safety Code § 25249.7 was barred. While gasoline from a leaking underground storage tank contaminated soil and water on the land, the one-year statute of limitation set forth in Cal. Code Civ. Proc. § 340 had expired. Shamsian v. Atlantic Richfield Co. (2003, 2nd Dist) 107 Cal App 4th 967, 132 Cal Rptr 2d 635, 2003 Cal App LEXIS 515.

Derivative claim alleging that plumbing parts discharged lead into drinking water was allowed to proceed under the Unfair Competition Law (UCL), B & P C § 17200 et seq., even though direct claims under Proposition 65 were dismissed due to failure to serve legally sufficient 60-day notices. The trial court improperly granted summary judgment on the UCL claim, finding that plaintiff environmental group had not performed a Tier 1 test, because the specific test asserted was not a Tier 1 test in that context. Mateel Environmental Justice Foundation v. Edmund A. Gray Co. (2003, Cal App 1st Dist) 115 Cal App 4th 8, 9 Cal Rptr 3d 486, 2003 Cal App LEXIS 1990, request denied, (2004) 2004 Cal. LEXIS 3781.

Each of the two new requirements in the amended H & S C § 25249.7(d) of the Safe Drinking Water and Toxic Enforcement Act of 1996, H & S C § 25249.5 et seq., is designed to discourage frivolous suits in different ways, including that if the action is subsequently filed and proceeds to judgment, the court may review the certificate of merit, and if it has no credible basis in fact, find the action frivolous and impose sanctions under the Code of Civil Procedure, pursuant to H & S C § 25249.7(h)(2), and in this respect, the amendment is similar to CCP § 411.35; however, the deterrent effect of the potential sanction is enhanced by the requirement in H & S C § 25249.7(d) requiring the production of data to the Attorney General before litigation commenced, which increases the Attorney General's understanding of the claim's likelihood of success, and thus permitting a private enforcer to serve the certificate of merit and data required by the statute after the lawsuit has been filed is an incomplete “cure.” DiPirro v. American Isuzu Motors, Inc. (2004, Cal App 1st Dist) 119 Cal App 4th 966, 14 Cal Rptr 3d 787, 2004 Cal App LEXIS 990.

Court affirmed the trial court's conclusion that an individual, as a private enforcer under the Safe Drinking Water and Toxic Enforcement Act of 1996, H & S C § 25249.5 et seq., could not cure the failure to timely provide a certificate of merit under H & S C § 25249.7(d) by serving it months after the litigation commenced. DiPirro v. American Isuzu Motors, Inc. (2004, Cal App 1st Dist) 119 Cal App 4th 966, 14 Cal Rptr 3d 787, 2004 Cal App LEXIS 990.

Membership corporation of hotels was not required to inform its members, determine the extent of any violation, and enforce Proposition 65. A public interest group was instead obligated to provide notice to the persons responsible for violating the statute. Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2005, Cal App 2nd Dist) 129 Cal App 4th 540, 28 Cal Rptr 3d 775, 2005 Cal App LEXIS 781, modified, rehearing denied, (2005) 2005 Cal. App. LEXIS 897, review gr, depublished, (2005) 34 Cal. Rptr. 3d 657, 120 P.3d 1051, 2005 Cal. LEXIS 10765, 2005 Cal. Daily Op. Service 86373, modified, (2005) 2005 Cal. App. LEXIS 897.

Action under Proposition 65, H & S C § 25249.5 et seq., was not ripe when the trial court entered a consent judgment under H & S C § 25249.7 that specified the warnings to be given if necessary in the future because plaintiff had admitted that the stainless steel surgical devices involved, which contained nickel, did not violate Proposition 65 and that all covered products fell within the no-significant-risk level. Vaccine Cases. William F. Bothwell v. Abbott Labs. (2005, Cal App 2nd Dist) 134 Cal App 4th 438, 36 Cal Rptr 3d 80, 2005 Cal App LEXIS 1840.

Consumers' lawsuit alleging that manufacturers of vaccines failed to warn of exposure to a toxic substance could not be maintained because the consumers' pre-suit notices of violation, which did not include certificates of merit, failed to meet the requirements in Health & Saf. Code, § 25249.7, subd. (d)(1); although the notices were served before the amendment of the statute, the complaint was filed after the date of amendment, and the statute's application was not retroactive. Vaccine Cases. William F. Bothwell v. Abbott Labs. (2005, Cal App 2nd Dist) 134 Cal App 4th 438, 36 Cal Rptr 3d 80, 2005 Cal App LEXIS 1840.

Consumers' lawsuit alleging that manufacturers of vaccines failed to warn of exposure to a toxic substance could not be maintained because the consumers' pre-suit notices of violation, which did not include certificates of merit, failed to meet the requirements in Health & Saf. Code, § 25249.7, subd. (d)(1); although the notices were served before the amendment of the statute, the complaint was filed after the date of amendment, and the statute's application was not retroactive. Vaccine Cases. William F. Bothwell v. Abbott Labs. (2005, Cal App 2nd Dist) 134 Cal App 4th 438, 36 Cal Rptr 3d 80, 2005 Cal App LEXIS 1840.

In reversing a settlement agreement, the court held that the factors under H & S C § 25249.7(f)(4) were not exclusive and that insufficient notice could also be considered. Notice to the Attorney General was insufficient under H & S C § 25249.5 et seq., in that it targeted landlords because they had furniture and paint and electric lights and therefore the target was not meaningfully differentiated. Consumer Defense Group v. Rental Hous. Indus. Mbrs. (2006) 137 Cal App 4th 1185, 40 Cal Rptr 3d 832, 2006 Cal App LEXIS 407.

Under H & S C § 25249.7(f)(5), the Attorney General had standing to appeal the approval of a settlement agreement. Consumer Defense Group v. Rental Hous. Indus. Mbrs. (2006) 137 Cal App 4th 1185, 40 Cal Rptr 3d 832, 2006 Cal App LEXIS 407.

Legislature did not include the “fair, reasonable, and adequate” test used in federal class action litigation when it codified judicial review of a Cal. Proposition 65 settlement, and the absence of the rule indicates that it does not apply to Proposition 65 litigation. Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006, 2d Dist) 45 Cal Rptr 3d 647, 141 Cal App 4th 46, 2006 Cal App LEXIS 1041.

Trial court is required to consider the public interest when it evaluates a proposed consent judgment brought by a private plaintiff who is suing on behalf of the public interest. The court must find that a Cal. Proposition 65 consent judgment is just and serves the public interest because settlement without consideration of the public interest eviscerates the purpose of Proposition 65, and the plain language of H & S C § 25249.7 contradicts an argument that the public interest is not one of the three findings stated by the legislature to be required. Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006, 2d Dist) 45 Cal Rptr 3d 647, 141 Cal App 4th 46, 2006 Cal App LEXIS 1041.

In a case in which a trial court entered consent judgments settling litigation brought by groups purporting to represent the public against hotels for alleged violations of Cal. Proposition 65 based on secondhand smoke, the trial court never acknowledged that it had a duty to find that the settlements were in the public interest, and the provisions of the judgments in the case did not serve the public interest because a broad release purported to preclude the public from future litigation of both known claims and additionally discovered ones, and a provision allowing defendants to unilaterally opt-out arguably rendered each judgment illusory. Because the trial court never identified the specific benefit the public would reap from the consent judgments, the judgments had to be reversed. Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2006, 2d Dist) 45 Cal Rptr 3d 647, 141 Cal App 4th 46, 2006 Cal App LEXIS 1041.