BILL ANALYSIS
------------------------------------------------------------
|SENATE RULES COMMITTEE | SB 1722|
|Office of Senate Floor Analyses | |
|1020 N Street, Suite 524 | |
|(916) 445-6614 Fax: (916) | |
|327-4478 | |
------------------------------------------------------------
THIRD READING
Bill No: SB 1722
Author: Ducheny (D)
Amended: 4/27/04
Vote: 27
SENATE JUDICIARY COMMITTEE : 5-0, 4/20/04
AYES: Escutia, Morrow, Cedillo, Ducheny, Kuehl
NO VOTE RECORDED: Ackerman, Sher
SENATE APPROPRIATIONS COMMITTEE : Senate Rule 28.8
SUBJECT : Proposition 65: enforcement: judgments
SOURCE : California Apartment Association
DIGEST : This bill provides that where a court finds that
the doctrine of res judicata bars the relitigation of an
issue or a cause of action, a later action would be barred.
ANALYSIS : 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.
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
CONTINUED
SB 1722
Page
2
in or court-approved settlement of a prior case brought by
another person in the public interest.
The Safe Drinking Water and Toxic Enforcement Act of 1986
(Proposition 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.
Background
A Proposition 65 case may be brought by any person in the
public interest:
1. Sixty 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.
2. 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.
3. If the alleged violation is for failure to warn under
Health and 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.
NOTE: The author, bill sponsor, supporters and opponents
SB 1722
Page
3
of prior versions of the bill, and Senate Judiciary
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."
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
SUPPORT : (Verified 5/10/04)
California Apartment Association (source)
Allmark Properties
Archstone Smith
California Apartment Association
California Chamber of Commerce
California Manufacturers and Technology Association
Cambridge Village
Civil Justice Association of California
Exlnt Property Management Co.
League of California Cities
Proposition 65 Coalition
ARGUMENTS IN SUPPORT : 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
SB 1722
Page
4
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.
RJG:sl 5/11/04 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
**** END ****