Opinion
Page 1070a
153 Cal.App.4th 1070a __ Cal.Rptr.3d__ MICHAEL DiPIRRO, Plaintiff and Appellant, v. BONDO CORPORATION, Defendant and Appellant. A110913 California Court of Appeal, First District, First Division August 8, 2007Alameda County Superior Court, Honorable Bonnie L. Sabraw, Super. Ct. No. 01-032519
COUNSEL
Dell'Ario & LeBoeuf, Jacques LeBoeuf; Chanler Law Group and Clifford A. Chanler for Plaintiff and Appellant.
Nossaman, Guthner, Knox & Elliott, Carol Rene Brophy, Patrick J. Richard and Deborah E. Beck for Defendant and Appellant.
Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Tom Greene, Chief Assistant Attorney General, Theodora Berger, Assistant Attorney General, Edward G. Weil and Susan S. Fiering, Deputy Attorneys General, as Amicus Curiae.
THE COURT.
Stein, Acting P. J.
It is ordered that the opinion filed herein on July 12, 2007 (153 Cal.App.4th 150, ___ Cal. Rptr. 3d ___ ), be modified in the following particulars:
1. The third sentence of the first full paragraph on page 23 [153 Cal.App.4th 180, advance report, 2d full par., line 6] is modified by deleting the word "First," so that the sentence will now read:
The essential character and purpose of the Act is equitable.
2. The first two lines on page 24 [153 Cal.App.4th 180, advance report, 2d full par., line 11] containing the Consumer Cause citation are modified by adding the point page "462." The rest of that paragraph starting with "The Act" is deleted. The citation, which will end the paragraph, will now read:
(Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 461–462 [110 Cal.Rptr.2d 627].)
Page 1070b
3. In the first full paragraph on page 24, [153 Cal.App.4th 181, advance report, 2d full par., line 6], the sentence beginning with “Both the listing of a chemical” is modified by deleting the sentence and inserting in its place the sentence “An action that seeks to enforce the consequences of the listing of a chemical fundamentally seeks a form of declaratory relief—that the product requires a warning under the Act—which is equitable in nature and does not carry with it the guarantees of a jury trial.” The paragraph will now read:
The foremost consideration before us is that the remedies sought through an enforcement action under the Act are equitable in nature. “Determining whether the gist of a claim is in law or equity ‘depends in large measure upon the mode of relief to be afforded.’ [Citation.]” (Asare v. Hartford Fire Ins. Co., supra, 1 Cal.App.4th 856, 867; see also Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 697 [59 Cal.Rptr.2d 303].) An action that seeks to enforce the consequences of the listing of a chemical fundamentally seeks a form of declaratory relief—that the product requires a warning under the Act—which is equitable in nature and does not carry with it the guarantees of a jury trial. (See Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 91 [40 Cal.Rptr.3d 34]; Caira v. Offner, supra, 126 Cal.App.4th 12, 26–27; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1241 [19 Cal.Rptr.3d 416]; Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th 333, 357–358.)
There is no change in the judgment.