DiPirro v. Bondo Corporation

Decision Date12 July 2007
Docket NumberNo. A110913.,A110913.
Citation62 Cal.Rptr.3d 722,153 Cal.App.4th 150
CourtCalifornia Court of Appeals Court of Appeals
PartiesMichael DiPIRRO, Plaintiff and Appellant, v. BONDO CORPORATION, Defendant and Appellant.

SWAGER, J.

Plaintiff Michael DiPirro (DiPirro) filed a complaint against defendant Bondo Corporation (Bondo) seeking enforcement of the provisions of the California Safe Drinking Water and Toxic Enforcement Act of 1986 (the Act) (Health & Saf.Code, §§ 25249.5-25249.13).1 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.2 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 the 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.3 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."4 (§ 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 individual 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.5 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)).6

The parties stipulated to bifurcation of the proceedings, "with the trial of issues relating to Bondo's seventh affirmative defense—which may be dispositive—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.7 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 blood stream. 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.8 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 implementating 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 conceptus."

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...

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