National Paint & Coatings Assn. v. State of California

• Citation: 68 Cal.Rptr.2d 360,58 Cal.App.4th 753
• Decision Date: 22 October 1997
• Docket Number: No. B108082,B108082
• Court: California Court of Appeals
• Parties: , 97 Cal. Daily Op. Serv. 8179, 97 Daily Journal D.A.R. 13,181 NATIONAL PAINT & COATINGS ASSOCIATION, INC., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

Page 360

68 Cal.Rptr.2d 360

58 Cal.App.4th 753, 97 Cal. Daily Op. Serv. 8179,

97 Daily Journal D.A.R. 13,181

NATIONAL PAINT & COATINGS ASSOCIATION, INC., Plaintiffs and Appellants, v. STATE of California et al., Defendants and Respondents.

No. B108082.

Court of Appeal, Second District, Division 7, California.

Oct. 22, 1997.

Rehearing Denied Nov. 20, 1997.

Review Denied Jan. 14, 1998.

Haight, Brown & Bonesteel, L.L.P., Jeffrey B. Margulies, Santa Monica, National Paint & Coatings Association, Inc., and Thomas J. Graves, for Plaintiffs and Appellants.

Daniel E. Lungren, Attorney General, Roderick E. Walston, Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, Craig C. Thompson, Edward G. Weil and Susan S. Fiering, Deputy Attorneys General, for Defendants and Respondents.

NEAL, Associate Justice.

SUMMARY

Two paint manufacturers associations sued claiming that private citizen enforcement provisions of drinking water and toxic chemicals legislation violate constitutional separation of powers and due process principles. However, the associations pleaded no facts to show that private enforcement interferes with or impairs Executive Branch enforcement. Nor did they make out a violation of due process rights. The trial court properly dismissed the complaint.

FACTUAL AND PROCEDURAL BACKGROUND

Plaintiffs and appellants, two associations of paint manufacturers, sued to invalidate the private enforcement provisions of the Safe Drinking Water and Toxic Enforcement Act of 1986 (the Act). They contended that the Act, in authorizing suits by private citizens who have sustained no injury, violates the Separation of Powers doctrine under the California constitution, and the Due Process Clauses of the California and United States Constitutions. They also challenged the constitutionality of the Unfair Competition Act (UCA), which authorizes private citizens, acting for the interest of the general public, to sue for injunctions against unlawful, unfair, or fraudulent business practices. ¹ Plaintiffs allege that suits under the Act frequently include claims under UCA as well.

Appellant National Paint & Coatings Association, Inc. is a nationwide non-profit association with 500 members which produce 75% of the nation's paint and related products. Appellant California Paint Council is an association of California paint manufacturers.

California voters enacted the Act in 1986 by passing the ballot initiative designated Proposition 65.

The Act's substantive provisions are summarized as follows:

--The Governor is required to develop a list of chemicals known to cause cancer or reproductive toxicity. (Health & Saf.Code, § 25249.8.)

--Listed chemicals may not be discharged into any source of drinking water. (Health & Saf.Code, § 25249.5.)

[58 Cal.App.4th 757] --Discharges of insignificant amounts of chemicals are permissible. (Health & Saf.Code, § 25249.9.)

--Persons doing business shall not intentionally expose individuals to the listed chemicals without first giving a clear and reasonable warning. (Health & Saf.Code, § 25249.6.)

--Chemicals shown to pose no significant risk require no warning. (Health & Saf.Code, § 25249.10.)

The Act is enforced as follows:

--Violations may be enjoined, or punished by a civil penalty of up to $2,500 per day. (Health & Saf.Code, § 25249.7(a), (b).)

--Suit may be brought by the Attorney General, the district attorneys and prosecutors of the larger cities, and certain other municipal lawyers. (Health & Saf.Code, § 25249.7(c).)

--"Any person in the public interest" may sue 60 days or more after giving notice to the Attorney General and the local prosecutor and City Attorney, if none of these authorities has commenced a suit. Citizens bringing such suits need not plead a private injury and instead are deemed to sue "in the public interest." (Health & Saf.Code, § 25249.7(d).)

Appellants' complaint in summary contended that private citizen enforcement of the Act is inconsistent with Executive Branch enforcement. Thus the complaint alleged that private actions have been undertaken on grounds inconsistent with the Attorney General's interpretations of the Act. Private plaintiffs have advocated warnings, exposure calculations, remedies and penalties different from those advocated by the Attorney General, and have on occasion obtained relief in addition to that sought by the Attorney General. Appellants alleged these inconsistencies have arisen because the Attorney General is unable to supervise or control some private citizen claims, including suits not joined in by the Attorney General, and because some private citizen claims settle after a 60-day notice but before suit is filed. Appellants also alleged that some 60-day notices provide the Attorney General insufficient information to determine whether to sue.

Appellants' complaint was not verified. Appellants did not affirmatively assert the truth of the matters pleaded, but instead alleged they were "informed and believed" that the crucial allegations were true.

Further, the complaint did not identify specific, concrete instances where public and private enforcers of the Act have advocated inconsistent warnings or remedies, or where the Attorney General's ability to supervise and control enforcement of the Act The only factually specific matter pleaded appeared in a series of exhibits attached to the complaint. These included several newspaper pieces and memoranda. Not included, however, were any court orders or decrees demonstrating even a single instance of actual conflicting enforcement of the Act.

has been subverted by private enforcement. Indeed, the complaint did not even allege that inconsistent warnings, interpretations, remedies, or penalties were in fact adopted in any actual case. Instead, the complaint simply alleged that private enforcers have "pursued " and "asserted " positions inconsistent with the Attorney General.

The exhibits did include materials relating to three different private enforcement lawsuits under the Act. These included:

--A memorandum of points and authorities filed by the Attorney General in People v. Aermotor Pumps, (Super.Ct. Alameda County, No. 733686-7). In this memorandum the Attorney General argues in support of the right of private plaintiffs to participate as plaintiffs. No orders or documents are attached with the complaint which show that inconsistent rulings or other events detrimental to the Act's policies or the Attorney General's enforcement activities occurred in this suit.

--Disjointed excerpts from a reporter's transcript of a hearing June 3, 1994, in People v. The Sherwin-Williams Co. (Super.Ct.S.F.County, 1994, No. 952-433). While it appears the hearing involved an objection by a private plaintiff to a settlement proposed between the Attorney General and the defendant, the incomplete transcript makes it impossible to discern how the hearing concluded. No other materials or facts were supplied or pleaded to show that, at the end of the day, the Act's policies or the Attorney General's enforcement was impeded.

--An amicus brief filed in May 1995 by the Attorney General in As You Sow v. Ashland Chemical, Inc. (Super.Ct.S.F.County, 1995, No. 966954) arguing in support of defendant's demurrer and asserting that the private plaintiff's notice of violation failed to provide the Attorney General with sufficient information about the alleged violation.

Also attached with the complaint were news reports showing this suit was settled in April 1996 with substantial payments to the private plaintiff. But no facts were pleaded, or referred to in other exhibits, to show what happened between May 1995 and April 1996, or to show that inconsistent warnings, remedies or penalties resulted or that the Attorney General's enforcement of the Act was impaired.

In short, no facts appeared, either in the complaint itself, or in its exhibits, to support appellants' core allegations.

Elsewhere, the complaint contained allegations contradicting appellants' claim that the Attorney General does not supervise or control private suits. Thus it was alleged that the Attorney General routinely cooperates with private plaintiffs in suits under the Act, and that the Attorney General influences private suits through amicus briefs or through intervention.

Another exhibit to the complaint, a March 1992 memorandum prepared by the Attorney General's Office concerning "Proposition 65 Enforcement Activities and Policies," likewise contradicted the claimed detrimental effects of private enforcement activity. The memorandum neither stated nor implied that private enforcement of the Act undermines or impairs the Act or the Attorney General's efforts to enforce it. In a heading titled "Private Enforcement" the memo stated, in pertinent part:

"Since the statute took effect, we have received dozens of 60 day notices, most of which have not resulted in litigation by either public prosecutors or private citizens. Where a private party does pursue a suit, we generally follow its progress, and have in some instances filed briefs as amicus curiae, where an issue of overall importance to implementation of the statute was being raised. Under appropriate circumstances, we could seek to intervene in such a case, or file a separate suit, but we have not done so."

The memo also noted that the Attorney General reviews some private action settlements, since they potentially bind the public authorities. In some instances he sends a "We have not filed actions under those circumstances. While we may encourage a private party not to sue, the citizen suit provision gives that party the right to differ with our judgment, or to supplement our limited resources."

letter approving the settlement in principle. In some instances he has concluded an action should not be filed and has declined invitations from prospective defendants to sue anyway in order to bar private claims:

The memo further stated:

"Where a private par...