Opinion
A149383
09-13-2019
SHEFA LMV, LLC, Plaintiff and Respondent, v. CONCEPT II COSMETICS, LLC et al., Defendants and Respondents; ANTHONY E. HELD, Movant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Marin County Super. Ct. No. CIV1503341)
This appeal arises out of a private action to enforce Proposition 65, the California Safe Drinking Water and Toxic Enforcement Act of 1986. (Health & Saf. Code, § 25249.5 et seq. (Prop 65)). Anthony Held, Ph.D., P.E. (Held) seeks review of superior court orders denying his motion to intervene in this case and approving proposed consent judgments negotiated by plaintiff Shefa LMV, LLC (Shefa) and multiple defendants. We shall dismiss the appeal as nonjusticiable.
I. BACKGROUND
In September 2015, Shefa filed the underlying private enforcement action under Prop 65, seeking a civil penalty and damages from multiple defendants for their alleged failure "to warn individuals in California about exposures to Benzophenone," a chemical known to cause cancer that is contained in cosmetic products sold by defendants in California. In April 2016, Held filed a motion to consolidate his separate Prop 65 action with Shefa's case on the ground that he too sought to remedy an alleged violation of Prop 65 for failure to warn about the cancer-causing effects of Benzophenone in cosmetic products. The superior court denied this motion.
In early May 2016, before his consolidation motion was denied, Held filed a motion to intervene, claiming he had direct interests in the matter that were not adequately represented by the existing parties. (Code Civ. Proc., § 387.) On June 10, 2016, the superior court denied Held's motion to intervene without prejudice. The court found that Held failed to establish that intervention was warranted, but if a proposed settlement of Shefa's claims was shown to affect Held's separate litigation, he could renew his motion at that time.
On July 8, 2016, the superior court granted a motion to approve proposed modified consent judgments settling Shefa's claims against 12 sets of defendants. In a minute order outlining the ruling, the court found, among other things, that Held was the sole objector to the proposed settlements, that Held's objections were limited to his private financial interests, and that the settlements did not unfairly injure those interests.
On August 29, 2016, the superior court signed and filed an "Order for Approval of Consent Judgments" (the August 29 order), approving a modified consent judgment between Shefa and 11 of the 12 defendants whose settlements were approved by the court on July 8. A "Modified Consent Judgment" between Shefa and the 11 defendants (the Concept II Cosmetics consent judgment) was signed by the court and filed that same day, August 29. On September 9, 2016, Held filed a notice of appeal from the August 29 order, but he did not appeal from the Concept II Cosmetics consent judgment itself.
The other defendant, Taylor James, LLC (Taylor James), executed a separate modified consent judgment with Shefa (the Taylor James consent judgment), which was approved by the court and entered on August 5, 2016. Because Held did not appeal the approval of the Taylor James consent judgment, we granted a motion to dismiss this appeal in part, dismissing it as to Taylor James, but denying the motion as to the remaining respondents.
The only issue before us that remained for resolution after our partial grant of the motion to dismiss was the trial court's denial of Held's motion to intervene. As we explained in our August 25, 2017 order, the court's denial of the intervention motion without prejudice on June 10, 2016 was not appealable, but court approval of the Concept II Cosmetics consent judgment in the August 29 order was "effectively a judgment against" Held with respect to his right to intervene (Noya v. A.W. Coulter Trucking (2006) 143 Cal.App.4th 838, 841) and thus represented a "final determination that [Held] did not have a right to intervene in this case" at that point.
In his notice of appeal, Held perfected the right to appeal on this basis by specifically designating the following two orders for appeal: (1) the June 10, 2016 minute order denying his motion to intervene without prejudice, and (2) the August 29 order approving a settlement agreement over his objection.
II. DISCUSSION
The appeal from the denial of intervention that Held perfected is not the appeal that he argues. Rather, he focuses solely on what he characterizes as the trial court's erroneous ruling that the form of 60-day notice of violation (NOV) he served on the defendants in his separate action does not encompass products made by manufacturers sued by, and who settled with, Shefa. Pressing an elaborate argument based on the language of Health and Safety Code section 25249.7, subdivision (d)(1), and in an implementing regulation promulgated by the Office of Environmental Health Hazard Assessment at section 25903 of title 27 of the California Code of Regulations, Held argues that an NOV is valid so long as it provides a generic description of the type of consumer product alleged to violate Prop 65 as illustrated by an exemplar product. (Cal. Code Regs., tit. 27, § 25903, subd. (b)(1)(D).) To support a later Prop 65 suit attacking as noncompliant a generic consumer product identified in this fashion, Held contends, a private enforcer need not identify any specific product, any specific manufacturer, or any specific manufacturer's role in making a specific product. He attacks as fundamentally flawed the view—which he claims the trial court adopted—that Prop 65 limits a private enforcer's cause of action against a retailer to products made by the manufacturer of the exemplar product identified in the NOV (an interpretation of the law which he calls the " 'single manufacturer' " rule).
Whether Held's NOVs were specific enough to give him standing to pursue Prop 65 relief against any particular defendant in his separate suit is not the question the trial court decided in its August 29 order. Rather, the court focused on whether the proposed consent judgment was in the public interest. (Leeman v. Adams Extract & Spice, LLC (2015) 236 Cal.App.4th 1367, 1375.) It specifically considered whether the required warnings complied with Prop 65 (which it found they did), whether the award of attorney's fees was reasonable (it was found to be), and whether the agreed upon penalties were reasonable (they were found to be). Those are the criteria for approval of any settlement of a Prop 65 private enforcement action (see Health & Saf. Code, § 25249.7, subd. (f)(4); Leeman, at pp. 1375-1376), and Held does not argue that the court erred in applying them here. His complaint, instead, is that the release language given to manufacturer defendants in the Concept II Cosmetics consent judgment was so broad that it effectively released downstream retailer defendants in his separate Prop 65 suit from liability for distributing offending products supplied by the settling defendants.
Appearances have been made in the appeal, and responding briefs filed, not only by Shefa and the defendants who are parties to the consent judgments, but by a group of eight parties styling themselves the "Distribution Chain Releasees," none of whom are parties to the consent judgment. Held filed a motion to strike the responding brief filed by the Distribution Chain Releasees on the ground that, as strangers to this action, they are not entitled to file a responding brief without leave from us. We grant that motion in part—to the extent it questions the right of non-parties to the consent judgment to appear before us in this appeal—but will construe the irregular procedure the Distribution Chain Releasees followed in jointly appearing with these non-parties as an application to file an amicus brief. (See Cal. Rules of Court, rule 8.200(c).) So construed, we grant their request and have considered their brief as an amicus filing.
Though not strictly necessary for approval of the Prop 65 settlement before it, the trial court commented on this line of objection from Held, as follows. "To the extent Dr. Held contends that the settlements here unfairly release defendants named in his complaint(s), the court is not so persuaded. This court indeed noted in its denial of Held's recent motion to intervene in the Shefa litigation, that to allow Shefa to release the Held defendants from all liability in the previously filed Held matter would be profoundly unfair. The court's decision here is consistent with that principle. The releases here are narrowly tailored to apply only to the settling parties' covered products. Such narrow releases are not unfair to Dr. Held, who did not name the settling parties as defendants in his action, and did not include any of their products as exemplar products in his 60-day notices. The settlements do not purport to grant a broad release of Held's retailer defendants from any and all liability for benzophenone-containing products. It was this type of broad release that the court referenced in its stated concerns. Dr. Held's cases remain intact. To the extent the settlements and accompanying releases will prevent Dr. Held from expanding his litigation, such result is not unfair."
We think that, from a Prop 65 enforcement policy perspective, reasonable arguments may be advanced on both sides about whether manufacturer defendants in one Prop 65 private enforcement action should be allowed to, in effect, confer immunity on downstream retailers in another Prop 65 private enforcement action by obtaining settlement releases designed to protect those who distribute the settling manufacturer's products downstream. It seems to us that, in addressing the competing arguments touching upon this issue, the trial court resolved them in a reasonable way on this record for purposes of approving the Concept II Cosmetics consent judgment. In doing so, the court took the eminently sensible view that Held's objections were part of a "turf war" between private enforcers and were not "based on what is in the public interest." The court did go on to explain as an aside, however, that it "has endeavored to protect Held's interests." In the court's view, Held's "interests here . . . are not as broad as he suggests. [They] rest on the apparent assertion that his suit against various retailers, accompanied by a broad 60-day notice, gives him a monopoly over every potentially offending product sold by those retailers, whether or not he investigated the product, or even knew about it. Held is not entitled to own the field in such a broad way. The private enforcement of these claims is aimed at protecting the public, and not simply enriching private enforcers and their counsel."
Held seizes on these side comments about the legal effect of the NOV in his separate Prop 65 suit and makes them the centerpiece of his attack on the trial court's supposed adoption of a so-called "single manufacturer" rule. It appears to us, however, that in doing so he seeks to conjure up an issue that is not actually presented on this record. Now, to be sure, we might not go so far as the trial court did in characterizing Held's objective as seeking a "monopoly," since a monopoly, by definition, excludes others; obviously, Held was not trying to exclude Shefa from the enforcement campaign against the manufacturing defendants who agreed to the Concept II Cosmetics consent judgment, but rather was seeking to participate in Shefa's separate enforcement action, presumably, and understandably, so that he would be entitled to share in attorney's fees to the extent his efforts deserved recognition. But that underscores a fundamental deficiency in his appeal. The narrow issue before us is whether it was an abuse of discretion for the trial court to shut Held out of Shefa's lawsuit—which as a practical matter, meant foreclosing his ability to demand fees in the Shefa settlement—by denying him intervention. Shefa correctly points out that Held never addresses the issue of intervention, and never even mentions the deferential abuse of discretion standard applicable to intervention denials.
Nowhere in Held's opening brief or in his reply brief is there any mention of the reasons given for denying intervention in the June 10, 2016 minute order (from which he purports to appeal), or the criteria governing intervention, either on a mandatory basis, or on a permissive basis. We will not construct intervention arguments for Held in an effort to guess what he would have said had he bothered to address the issue. Held does belatedly address the standard of review in his reply brief, arguing that the standard is de novo because the underlying predicate of the trial court's order overruling his objections to the Concept II Cosmetics consent judgment was a legal error in construing the scope of his NOVs. But we are unpersuaded that de novo review applies simply because, out of an evident sense of fairness, after making the necessary findings to support approval of the consent judgment, the trial court went on to make some gratuitous comments that Held now says were based on a flawed legal premise.
Although we tend to agree that, by failing to address intervention, Held has forfeited the issue, we see a more fundamental defect with his appeal: Because the arguments he chooses to present (concerning the scope of the release in the Concept II Cosmetics consent judgment) are unripe, and because the arguments he chooses not to present (concerning denial of intervention) are moot, the appeal is nonjusticiable and must be dismissed.
Taking these justiciability issues in order, ripeness first, it may well be that, in the future, should some defendant in Held's lawsuit attempt to set up a defense based on the release language in the Concept II Cosmetics consent judgment, the proper interpretation of that language and whether it is consistent with public policy could be an arguable issue. But that issue is not now before us, at least not in a sufficiently concrete way to make it ripe for decision. And as for mootness, the only avenue of attack left open to Held after our August 25, 2017 dismissal order was to focus on the denial of intervention. All we need to say about how Held could have done this while ensuring that the issue did not become moot is that there was a way to accomplish it but he never pursued the required procedural route. Because the judgment entered in this case is now final and unappealable, there is now no effective relief we could provide even if we agreed it was error for the trial court to deny intervention. In short, it would be an idle act for us to order that Held be given party-intervenor status in a lawsuit that is now over.
III. DISPOSITION
The appeal is dismissed. Respondents to recover their costs.
/s/_________
STREETER, J. We concur: /s/_________
POLLAK, P.J. /s/_________
TUCHER, J.