BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Martha M. Escutia, Chair
2003-2004 Regular Session
SB 1722 S
Senator Ducheny B
As Amended March 23, 2004
Hearing Date: April 20, 2004 1
Health & Safety Code 7
KH 2
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SUBJECT
Proposition 65: Enforcement: Judgments
DESCRIPTION
This bill would expressly state that the doctrine of res
judicata may bar relitigation of an issue or cause of
action in a Proposition 65 case brought by a person in the
public interest pursuant to Health & Safety Code Section
25249.7(d).
Author's amendments to be offered in Committee gut the
present provisions of the bill and instead would add
Section 25249.71 to the Health & Safety Code:
A court judgment in a case filed pursuant to Section
25249.7(d), or a settlement approved by the court
pursuant to Section 25249.7(f)(4), shall bar a later
action, or a part thereof, brought in the public interest
pursuant to Section 25249.7(d) where the court, in the
later action, finds that the doctrine of res judicata
bars relitigation of an issue or cause of action.
(This analysis reflects author's amendments to be offered
in Committee.)
BACKGROUND
A Proposition 65 case may be brought by any person in the
public interest:
(more)
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60 days after providing notice of the alleged violation
to the alleged violator and to the Attorney General and
the district attorney, city attorney or prosecutor in
whose jurisdiction the violation is alleged to have
occurred;
if neither the Attorney General, and district attorney,
any city attorney, nor any prosecutor has commenced and
is diligently prosecuting an action against the
violation; and
if the alleged violation is for failure to warn under
Health & Safety Code Section 25249.6, the notice of
violation must include a certificate of merit stating
that an expert has reviewed facts, studies or other data
regarding the exposure to the listed chemical that is
the subject of the action and that based on that
information, there is a reasonable and meritorious case
for the private action. The certificate of merit served
on the Attorney General must attach factual information
sufficient to establish the basis of the certificate of
merit.
A case under the Unfair Competition Law (Business &
Professions Code Section 17200 et seq.) may be brought "by
any person acting for the interests of . . . the general
public." [Bus. & Prof. Code Sec. 17204.] No preliminary
notice to the violator or the Attorney General and no
certificate of merit is required.
CHANGES TO EXISTING LAW
Existing law provides that a defendant may raise the
special defense of res judicata in any case in which the
defendant contends the action or any part thereof was
resolved on the merits in a prior action between the same
parties or their privies. [ See generally Code Civ. Proc.
Secs. 1908, 1908.5, 1911
This bill would reaffirm by statute that the special
defense of res judicata is available to a defendant in a
Proposition 65 case brought by a person in the public
interest and also that a court may find that a case brought
by a person in the public interest is barred in whole or in
part by the doctrine of res judicata based upon a judgment
in or court-approved settlement of a prior case brought by
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Page 3
another person in the public interest.
COMMENT
1.Asserted problem: Fear of "copy cat" lawsuits to extort
settlement money
California Apartment Association (CAA) contends that in
multiple industries (diesel engine manufacturers, cigar
manufacturers and retailers, PVC mini-blind distributors
and retailers, wine makers, manufacturers of paints and
art materials, manufacturers of hair coloring products,
and hotels), defendants are being sued by a plaintiff "in
the public interest" and, after settlement with or
judgement for the first plaintiff, a second plaintiff "in
the public interest" has filed a "copy cat" lawsuit based
on the same facts and claims already decided in the first
case.
CAA argues that it is often more cost-effective for a
business to pay the second plaintiff a "nuisance
settlement" to "go away" instead of incurring the
attorneys' fees and costs to fight the second plaintiff's
claim in court.
CAA states that its members are being sued by plaintiffs
"in the public interest" for failure to post the required
warning signs and are fearful that apartment owners and
managers, like other industries before them, will soon be
sued again by a new plaintiff "in the public interest" on
the same claims.
Proponents of the bill cite two cases in which the
defendants ultimately prevailed on appeal in establishing
that res judicata barred the second "public interest"
plaintiff's claim, but at tremendous cost.
2.Doctrine of res judicata bars repetitive litigation by
the same parties
In summary, the doctrine of res judicata (and its two
sub-species, issue preclusion (also called collateral
estoppel) and claim preclusion) prevents a subsequent
lawsuit when: 1) the issues, or causes of action, in the
prior adjudication are identical with those presented in
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the later action; 2) there was a final adjudication on
the merits in the prior action; and 3) the party against
whom the plea is raised was a party or in privity with a
party to the prior adjudication. [ Mycogen Corp. v.
Monsanto Co. (2002) 28 Cal.4th 888, 896-897; Citizens for
Open Access Etc. Tide, Inc. v. Seadrift Assn. (1998) 60
Cal.App.4th 1053, 1065.]
"The doctrine of res judicata rests upon the ground that
the party to be affected, or some other with whom he is
in privity, has litigated, or had an opportunity to
litigate the same matter in a former action in a court of
competent jurisdiction, and should not be permitted to
litigate it again to the harassment and vexation of his
opponent. Public policy and the interest of litigants
alike require that there be an end to litigation."
[ Panos v. Great Western Packing Co. (1943) 21 Cal.2d 636,
637.])
This bill would reaffirm by statute that the doctrine of
res judicata is applicable in Proposition 65 cases. This
clear statement of the applicability of res judicata in
Proposition 65 cases may deter frivilous "copy cat"
lawsuits.
3.Continued discussions will be scheduled to search for
broader, but fair, solution to prevent repetitive
litigation
The author, bill sponsor, supporters and opponents of
prior versions of the bill, and Committee staff will
continue discussions to see if there is a broader
solution to the threat of repetitive litigation that will
protect defendants from abusive practices and protect the
due process rights of plaintiffs who file Proposition 65
actions "in the public interest."
4.Passage of this bill requires finding and declaration
that it furthers the purposes of Proposition 65 and
requires a two-thirds vote
The Safe Drinking Water and Toxic Enforcement Act of 1986
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(Prop. 65) requires that any amendment be in furtherance
of the purposes of the act, and requires that it be
passed in each house by a two-thirds vote. [Initiative
Measure, Nov. 4, 1986, Sec. 7.]
Support: to bill as amended March 23, 2004: Allmark
Properties; Archstone Smith; California Apartment
Association; California Chamber of Commerce;
California Manufacturers & Technology Association;
Cambridge Village; Civil Justice Association of
California; Exlnt Property Management Co.; League
of California Cities; Proposition 65 Coalition
Opposition:to bill as amended March 23, 2004: California
League for Environment Enforcement Now (CLEEN);
Consumer Attorneys of California; Sierra Club,
California
HISTORY
Source: California Apartment Association
Related Pending Legislation: None Known
Prior Legislation: AB 1776 (Campbell) of 2003, dropped by
author
AB 2379 (Campbell) of 2004, pending
hearing by Assembly
Environmental Safety and Toxic Materials
Committee and
Assembly Judiciary Committee
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