BILL ANALYSIS
SB 1722
Page 1
Date of Hearing: June 22, 2004
ASSEMBLY COMMITTEE ON JUDICIARY
Ellen M. Corbett, Chair
SB 1722 (Ducheny) - As Amended: June 14, 2004
As Proposed to Be Amended
SENATE VOTE : 38-0
SUBJECT : PROPOSITION 65: RES JUDICATA
KEY ISSUES :
1)SHOULD THE LEGISLATURE SPECIFICALLY PROVIDE BY STATUTE THAT
THE DOCTRINE OF RES JUDICATA - AN AFFIRMATIVE DEFENSE THAT
BARS THE SAME PARTIES (OR PARTIES IN PRIVITY) FROM LITIGATING
A SECOND LAWSUIT ON THE SAME CLAIM - APPLIES TO PRIVATE
ACTIONS BROUGHT TO ENFORCE PROPOSITION 65?
2)SHOULD THIS BILL BE AMENDED TO PROVIDE THAT THE COURT
CONSIDERING WHETHER TO APPLY RES JUDICATA, BASED ON AN EARLIER
COURT DECISION, BE REQUIRED TO ALSO DETERMINE WHETHER THE
JUDGMENT IN THE FIRST ACTION WAS FAIR, REASONABLE, AND
ADEQUATE, AS OPPONENTS APPEAR TO REASONABLY SUGGEST?
3)IN THE EVENT THAT THE AUTHOR CHOOSES TO AMEND THE BILL BACK TO
THE FORM PASSED BY THE SENATE, SHOULD NOT THE COMMITTEE STILL
INSIST THAT THE BILL BE AMENDED, AS SUGGESTED BY OPPONENTS, TO
DEAL WITH THE THREAT OF COLLUSIVE SETTLEMENTS?
SYNOPSIS
This bill, sponsored by the California Apartment Association
(CAA), seeks to specifically provide by statute that the
doctrine of res judicata - an affirmative defense that bars the
same parties or parties in privity from litigating a second
lawsuit on the same claim(s) - applies to private actions
brought to enforce the requirements of the Safe Drinking Water
and Toxic Enforcement Act of 1986, (hereinafter referred to as
"Proposition 65") relating to contamination of drinking water
and exposure warnings. Specifically, the bill provides that a
court judgment in an action filed by a person in the public
interest bars another action, or part of an action, brought by
any person in the public interest where the court finds that the
SB 1722
Page 2
doctrine of res judicata bars relitigation of an issue or cause
of action. As proposed to be amended, the bill also requires a
court, when approving a settlement of an action brought by a
person in the public interest, to make a finding that the
settlement is fair, reasonable and in the public interest in
addition to other specified findings currently required by
existing law.
The author indicates that the bill seeks to address the problem
of "copycat" private prosecutors who sue business owners,
alleging the same Proposition 65 violation already adjudicated.
The author argues that this is a serious problem which hurts
small and big businesses alike and can impact any industry.
Supporters believe that the bill benefits the people of
California by limiting exposure to alleged private attorney
abuse of Proposition 65 lawsuits being experienced by businesses
and non-profit organizations. They believe that the bill will
give business some relief from having to defend themselves
against multiple lawsuits on the same issue.
The California League for Environmental Enforcement Now (CLEEN)
raises serious concerns that the June 14th amendments could
negatively impact the public health by opening the door to more
collusive settlements against the public interest. CLEEN's
concerns are described in more detail in the analysis. The
Consumer Attorneys of California (CAOC) also strongly opposes a
statutory application of res judicata to Proposition 65 cases
without providing a clear mechanism to deal with collusive
settlements in the later action . CAOC opposes the bill unless
it is amended to allow the court considering whether to apply
the doctrine of res judicata to determine whether the first
judgment was fair, reasonable and adequate before barring a
subsequent action. The author and her sponsor are proposing to
amend the bill to instead require that the court approving the
settlement in the first action make a finding that the
settlement is fair, reasonable and in the public interest. As
discussed in more detail in the analysis, CAOC does not believe
that this approach addresses the problem of collusive
settlements since the parties to a collusive settlement will put
their best face forward and will portray the settlement in
favorable terms.
It appears upon legal review that the bill should be amended as
suggested by the bill's opponents to ensure that the threat of
collusive settlements is mitigated.
SB 1722
Page 3
SUMMARY : Seeks to specifically provide by statute that the
doctrine of res judicata applies to private actions brought to
enforce the requirements of Proposition 65 relating to
contamination of drinking water and exposure warnings.
Specifically, this bill as proposed to be amended:
1)Provides that a court judgment in an action filed by a person
in the public interest, or a judgment issued pursuant to a
settlement approved by the court in such a case, shall bar
another action, or part of an action, brought by any person in
the public interest where the court finds that the doctrine of
res judicata bars relitigation of an issue or cause of action.
2)Provides that nothing in the bill is intended to change or
modify existing law as it applies to a judgment in a case
filed by a public prosecutor.
3)Requires a court, when approving a settlement of an action
brought by a person in the public interest, to make a finding
that the settlement is fair, reasonable and in the public
interest in addition to other specified findings currently
required by existing law, as described below.
4)Contains a legislative finding and declaration that the bill
furthers the purposes of the Safe Drinking Water and Toxic
Enforcement Act of 1986 (Proposition 65).
EXISTING LAW :
1)Provides under Proposition 65 for the following provisions
applicable to businesses with 10 or more employees:
a) Prohibition on Contaminating Drinking Water with
Chemicals Known to Cause Cancer or Reproductive Toxicity.
No person in the course of doing business may knowingly
discharge or release a chemical known to the state to cause
cancer or reproductive toxicity into water or onto or into
land where such chemical passes or probably will pass into
any source of drinking water, except as specified. (Health
and Safety Code section 25249.5. All further statutory
references are to this Code unless otherwise noted.)
b) Required Warning Before Exposure to Chemicals Known to
Cause Cancer or Reproductive Toxicity. No person in the
SB 1722
Page 4
course of doing business may knowingly and intentionally
expose any individual to a chemical known to the state to
cause cancer or reproductive toxicity without first giving
clear and reasonable warning to that individual, except as
specified. (Section 25249.6.)
c) Penalties. Civil penalties of up to $2,500 per day for
each violation may be imposed and Proposition 65 provides
that in assessing the amount of a civil penalty the court
shall consider all of the following: (1) The nature and
extent of the violation; (2) The number of, and severity
of, the violations; (3) The economic effect of the penalty
on the violator; (4) Whether the violator took good faith
measures to comply and the time these measures were taken;
(5) The willfulness of the violator's misconduct; (6) The
deterrent effect that the imposition of the penalty would
have on both the violator and the regulated community as a
whole; and (7) Any other factor that justice may require.
(Section 25249.7(b).)
d) Actions by Public Prosecutors. The Attorney General,
any district attorney, and specified city attorneys may
bring an action to enforce Proposition 65's provisions.
(Section 25249.7(c).)
e) Actions by Persons in the Public Interest. Any person
may bring a case in the public interest under Proposition
65 provided that the following requirements are met:
i) The plaintiff first gives notice of the alleged
violation 60 days prior to commencing the action 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.
ii) If the alleged violation is for failure to warn,
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.
SB 1722
Page 5
iii) Neither the Attorney General, any district
attorney, any city attorney, nor any prosecutor has
commenced and is diligently prosecuting an action against
the violation. (Section 25249.7(d).)
f) Reporting Requirements. Proposition 65 requires
plaintiffs bringing an action in the public interest to
comply with specified reporting requirements, including
notifying the Attorney General that the action has been
filed and completing a form created by the Attorney General
that specifies the results of the settlement or judgment
and the final disposition of the case. (Section 25249.7(e)
and (f).)
g) Approval of Settlement. If there is a settlement of an
action brought by a person in the public interest, the
plaintiff is required to submit the settlement (other than
a voluntary dismissal where no consideration is received
from the defendant) to the court for approval and the court
may approve the settlement only if it makes all of the
following findings:
i) Any warning that is required by the settlement
complies with Proposition 65.
ii) Any award of attorney's fees is reasonable under
California law.
iii) Any penalty amount is reasonable based on the
criteria set forth in (1)(c), above. (Section
25249.7(f)(4).)
2)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 of Civil Procedure sections 1908, 1908.5,
1911.)
FISCAL EFFECT : The bill as currently in print is keyed
fiscal.
COMMENTS :
Stated Need for the Bill. In support of the measure, the author
SB 1722
Page 6
writes:
Senator Ducheny introduced SB 1722 because we have a
problem with "private enforcers" who have made a mockery
of Proposition 65 and who have used it to line their own
pockets. Specifically, this bill seeks to address the
problem of copycat private prosecutors who sue business
owners, alleging the same Proposition 65 violation
already adjudicated. This is a serious problem that does
not further the purposes of Proposition 65, hurts small
and big businesses alike; and can impact any industry.
The bill seeks to address this copycat lawsuit problem by
reaffirming 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 will prevent and discourage
frivolous, "copycat" lawsuits filed by private enforcers.
Copycat lawsuits allege the same violation adjudicated in
another case against the same business that defended the
adjudicated case. Indeed, other industries (diesel
engine manufacturers, cigar manufacturers and retailers,
wine makers, manufacturers of paints and art materials,
manufacturers of hair coloring products, and hotels) have
being [sic] hit with a second set of suits regarding the
same violations resolved and adjudicated in another
lawsuit. Even though such copycat suits lack merit, it
is often more cost-effective for a business to pay a
private enforcer his/her "nuisance" fee to "go away"
instead of incurring the attorneys' fees and costs to
fight the frivolous lawsuit.
The sponsor, CAA, writes "The California Apartment Association
is a student of history and its members understand that history
repeats itself. It is only a matter of time before owners of
rental housing are hit with a second waive of duplicative
Proposition 65 lawsuits. All it takes is one such suit to
dramatically and negatively impact the life of an individual
owner and the persons he/she houses. Such copycat suits provide
no additional protection to tenants and increase tenants' cost
of living (because owners often must pass on their additional
costs to their clients: their tenants.)"
The Civil Justice Association writes in support that the measure
SB 1722
Page 7
"benefits the people of California by limiting exposure to
private attorney abuse of Proposition 65 lawsuits being
experienced by businesses and non-profit organizations
throughout the state. The measure will help reduce costs to
businesses and help them put capital and jobs back into the
California economy." The Apartment Association of Greater Los
Angeles writes "The tactics of these 'law firms' is to bring
often frivolous claims, such as second hand smoke over which an
owner has little or no control nor responsibility. They then
agree not to pursue the matter for a settlement. . . .
Unfortunately, without SB 1722, settlement does not preclude
future frivolous actions on the same claim."
The California Chamber of Commerce states that the bill is
"intended to prevent Proposition 65 enforcers from taking a
'second-bite-at-the apple, by clarifying that a second lawsuit
cannot be brought against a business by a private enforcer if
the claim at issue has already been decided by a court of law.
The bill will give business some relief from having to defend
themselves against multiple lawsuits on the same issue."
Summary of Proposed Amendments. This bill is being heard today
as proposed to be amended. The mock-up reflects these
amendments which the author and her sponsor have indicated they
would like inserted in the measure. At the request of the
Attorney General's Office, the amendments delete language which
had included judgments in cases brought by public prosecutors.
With this amendment as well as the addition of language
providing that nothing in the bill is intended to change or
modify existing law as it applies to a judgment in a case filed
by a public prosecutor, the Office is neutral on the bill.
The amendments also require a court to make an additional
finding when approving a settlement of an action brought by a
person in the public interest. Under existing law, a plaintiff
bringing an action in the public interest must submit a
settlement of that action to the court for approval and the
court must make three findings before it may approve the
settlement as follows: (1) Any warning that is required by the
settlement complies with Proposition 65; (2) Any award of
attorney's fees is reasonable under California law; and (3) Any
penalty amount is reasonable based on specified criteria. As
proposed to be amended, this bill would require a fourth
finding; that the settlement is fair, reasonable and in the
public interest (this is identical to the finding proposed to be
SB 1722
Page 8
added by AB 1176 (Campbell) of 2003, as noted below).
Background: Doctrine of Res Judicata. The doctrine of res
judicata is an affirmative defense barring the same parties or
their privies from litigating a second lawsuit on the same
claim(s). "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.) Res judicata bars a second or subsequent
lawsuit when the party asserting the defense demonstrates the
following elements:
1) The issue decided in the prior adjudication is identical
to the one presented in the later action;
2) There was a final judgment on the merits in the prior
action; and
3) The party against whom the plea is asserted was a party
or in privity with a party to the prior adjudication.
( Bernhard v. Bank of America Nat'l Trust & Sav. Asso.
(1942) 19 Cal. 2d 807; Citizens for Open Access to Sand and
Tide, Inc. v. Seadrift Assn. (1998) 60 Cal.App.4th 1053.)
Privity. "The requirement of identity of parties or privity is
a requirement of due process of law . . . due process requires
that the party to be estopped must have had an identity or
community of interest with, and adequate representation by, the
losing party in the first action as well as that the
circumstances must have been such that the party to be estopped
should reasonably have expected to be bound by the prior
adjudication." ( Garcia v. Rehrig International, Inc. (2002) 99
Cal. App. 4th 869, 877 (citing Clemmer v. Hartford Insurance Co.
(1978) 22 Cal. 3d 865).) Res judicata must "conform to the
mandate of due process of law that no person be deprived of
personal or property rights by a judgment without notice and an
opportunity to be heard." ( Bernhard v. Bank of America Nat'l
Trust & Sav. Asso. 19 Cal. 2d at 810-811.)
"Privity is not susceptible of a neat definition, and
SB 1722
Page 9
determination of whether it exists is not a cut-and-dried
exercise. [citation] In the final analysis, the determination
of privity depends upon the fairness of binding appellant with
the result obtained in earlier proceedings in which it did not
participate. [citation] Whether someone is in privity with the
actual parties requires close examination of the circumstances
of each case. [citation]" ( Citizens for Open Access to Sand and
Tide, Inc. v. Seadrift Assn. 60 Cal.App.4th at 1070.)
Application of Doctrine to Proposition 65 Cases. The author
writes that "Proposition 65 currently does not address the issue
of whether the final resolution of an enforcement action brought
by a private party or public prosecutor bars subsequent
litigation by private enforcers over the same alleged
violation." In support, the author points to "two appellate
cases that have applied res judicata in the Proposition 65
context, but both cases are not citable as legal authority
because they are not published. See American International
Industries, 82 Cal. Rptr. 2d 836 (1999) (depublished);
Environmental World Watch v. Cummins Engine Co., Inc., 2003 WL
21540774 (2003) (unpublished). Although the courts have
generally agreed at the end of the day with the concept that
duplicative enforcement over the same alleged violation is not
permissible, the lack of definitive standard in the case law or
statute has contributed to unnecessary transaction costs in
defending baseless litigation."
CAOC responds that it is "unaware of any cases where a court
refused to apply the doctrine of res judicata in a Proposition
65 case." The organization then cites the two cases mentioned
by the author and writes that these decisions "used the doctrine
to bar subsequent actions claiming Prop 65 violations. In
American International Industries , the court went through an
extensive analysis and noted the potential problem of collusive
settlements in these cases (at footnote 12) while at the same
time concluding that the action was barred. In Environmental
World Watch , the court, having previously refused to apply the
doctrine because of a lack of privity, held a subsequent action
barred where the stipulated judgment provided that it 'includes
and resolves all Proposition 65 claims under [ 25249.5 et seq.]
relating to potential occupational, environmental and consumer
exposures to Covered Products, as that term is defined in the
Judgment.'"
Privity and Proposition 65: Actions Brought in the Public
SB 1722
Page 10
Interest. As noted above, the requirement of identity of
parties or privity is a requirement of due process of law. CAOC
writes, however, that the "doctrine of privity fits imperfectly
when applied to an action brought in the public interest. The
particular issues raised in Proposition 65 litigation make this
case specific determination [noted above Citizens for Open
Access to Sand and Tide, Inc. v. Seadrift Assn. ] all the more
critical."
The Issue of Collusive Settlements. CAOC is opposed to this
bill's "statutory application of res judicata to Proposition 65
cases without providing a clear mechanism to deal with collusive
settlements in the later action." CAOC further explains:
We understand through discussions with the Office of the
Attorney General that collusive settlements continue to
raise problems in Proposition 65 litigation. The
amendments to the statute contained in SB 471 (Sher) have
gone a long way in reducing the number of Prop 65 notices
filed and in increasing oversight by the Office of the
Attorney General. However, most of these actions are
settled through stipulated judgments. The parties
entering into the settlement have a keen interest in
putting forth information that shows the settlement in a
favorable light. Even experienced environmental lawyers
would be hard pressed to know if the terms are fair
without having additional information. Judges reviewing
the settlements rarely if ever look behind the terms of
the settlement. Indeed, judges are only required to
review whether the warning agreed upon in the settlement
meet the requirements of the statute. Thus, we do not
have an adequate mechanism for assuring that all
settlements are indeed in the public interest.
With respect to the collusive settlement issue, the sponsor
writes "if res judicata is existing law and this bill is
merely codifying existing law, how does this bill create the
collusive settlement problem? Assuming that collusive
settlements are a problem, since this bill does not create or
add to the problem, there is not reason why Senator Ducheny
should be required to address the alleged collusive settlement
problem through her bill."
CAOC worries that "If the legislature declares that the doctrine
should apply, courts will necessarily conclude that they should
SB 1722
Page 11
be applying the doctrine more rigorously than they are now."
Indeed, courts do not presume that the Legislature performs idle
acts, nor do they construe statutory provisions so as to render
them superfluous. ( Hagberg v. California Federal Bank (2004) 32
Cal. 4th 350; Harbor Fumigation, Inc. v. County of San Diego Air
Pollution Control District (1996) 43 Cal. App. 4th 854;
Shoemaker v. Myers (1990) 52 Cal. 3d 1.)
Are the Public Interest/Injustice Exceptions to Res Judicata
Sufficient? The sponsors write that even if the elements of res
judicata are established, "res judicata will not be applied by
courts (thereby allowing the second law suit to proceed) 'if
injustice would result or if the public interest requires that
relitigation not be foreclosed' (citations omitted)."
Therefore, they assert, should a collusive settlement occur in
the first action, the plaintiff in the subsequent action would
still have an opportunity to convince the court that his or her
action should proceed despite the fact that the elements of res
judicata are met. In response, CAOC writes "Existing
protections to assure that the public interest is protected are
inadequate. The 'public interest' exception is invoked only in
the most exceptional circumstances. The doctrine only applies
in the rare circumstance where the first judgment was erroneous
(citations omitted)." Indeed, legal treatises further state:
Two exceptions have been recognized to the application of
res judicata in unjust circumstances. One is a "public
interest" exception, holding that if an issue is a
question of law rather than of fact, then the prior
determination is not conclusive if the public interest
requires that relitigation not be foreclosed. This
public interest exception is extremely narrow, and may
only be applied in exceptional circumstances. The other
exception, which has been criticized and narrowly
applied, is an "injustice" exception, holding that, in
some rare cases, a judgment may not be res judicata where
to rigidly apply the doctrine would defeat the ends of
justice or important considerations of policy underlying
the doctrine. This injustice exception, though not
directly overruled, has been criticized and narrowly
applied. (citations omitted) (40 Cal Jur 3d (Rev) Part 2,
Judgments 134.)
As a result, it does not appear that the public interest and
injustice exceptions under the doctrine are sufficient to afford
SB 1722
Page 12
the plaintiff in the subsequent action a meaningful opportunity
to convince the court that his or her action should proceed
despite the fact that the elements of res judicata are met.
Issue: Should the Bill Be Amended To Better Deal With the
Threat of Collusive Settlements? As noted above, as proposed to
be amended, this bill would require a court, when approving a
settlement of an action brought by a person in the public
interest, to make a finding that the settlement is fair,
reasonable and in the public interest. CAOC raises concerns
about this language as it would require the court in the first
action to make the evaluation rather than the court determining
whether the doctrine of res judicata should apply. On this
point, CAOC writes:
. . . it is imperative that a court considering whether
to apply the doctrine be required to determine whether
the first judgment was fair, reasonable and adequate
before barring a subsequent action. It does not make
sense to include this determination in the first action
as the first judge will not have adequate information
to evaluate the settlement. If indeed the settlement
is collusive, the parties will in effect "put their
best face forward" and will portray the settlement in
favorable terms. The court that is required to decide
whether to permit a later action to proceed is in the
best position to rule whether that first judgment was
fair, reasonable and adequate.
Blanket application of res judicata to Proposition 65
cases without addressing the problem of collusive
settlements does not further the purpose of the
statute. Proposition 65 is only furthered if a court
ruling on the res judicata motion considers whether the
first action was fair, reasonable and adequate before
deciding to bar the later action.
CAOC has offered the following amendment to address its
concerns on the collusive settlement issue: "In addition to
applying any other factors required by law, the court in the
later action shall also determine whether the first judgment
was fair, reasonable and adequate in protecting the public
interest." The author and her sponsors did not accept the
amendment suggested by CAOC and instead are proposing to
amend the bill as described above.
SB 1722
Page 13
CLEEN also writes that it "supports the concept of providing
the courts with additional tools to address the problem of
collusive settlements. In particular, an amendment adding
language that would require a party challenging a later action
to provide evidence that the first action was 'fair,
reasonable and adequate' would provide the court a standard to
evaluate the prior case as potentially collusive." CLEEN
further believes that "the inclusion of 'fair, reasonable, and
in the public interest' as part of the case in main (first
case) would make the collusive settlements more iron-clad -
worsening the problem" and the group is opposed to that
language as part of the first case. As a result, the
Committee may wish to amend the bill to provide that the court
determining whether to apply res judicata determine whether
the first judgment was fair, reasonable and adequate in
protecting the public interest. This amendment is necessary
even in the event that the author chooses to amend the bill
back to the form passed by the Senate.
The Another v. Later Issue. This bill provides that a prior
judgment in a case brought by a plaintiff in the public interest
will bar "another" action brought by a plaintiff in the public
interest
where the court finds that res judicata bars relitigation of an
issue or cause of action. Previously, the bill had provided
that the prior judgment would bar a "later" action. The sponsor
explains that the change to "another" was necessary because the
previous "version of the bill can be construed as suggesting
(wrongly) that res judicata applies only to actions that are
initiated after the action that will be granted res judicata
effect. Thus, the terms 'a later' and 'in the later action' are
deleted."
CLEEN indicates that it is "particularly concerned about the
impact of SB 1722 on the problem of collusive settlements. The
June 14 amendments struck the word 'later' and replaced it with
'another'. Unfortunately this change increases the likelihood
that unethical parties will engage in collusive behavior. Under
the new language, an environmental organization in a hard fought
case in which it is likely to prevail, would have to face the
real possibility that the same defendant would solicit a
friendly collusive plaintiff who would quickly sue, and then
settle, for nominal relief, all before the legitimate case
settled. The result would be the bar of the legitimate case by
SB 1722
Page 14
the collusive sweetheart deal, fundamentally undermining the
public interest in that case."
Bill Applies to Both Contamination of Drinking Water and Failure
to Warn Cases. In background materials, the sponsor provided
the Committee with examples of "duplicative Proposition 65
actions that have been filed against different industries."
Most, if not all, of these examples appear to be failure to warn
cases brought under Proposition 65's requirement that a business
first give clear and reasonable warning before knowingly and
intentionally exposing individuals to a chemical known to the
state to cause cancer or reproductive toxicity. The bill,
however, is not limited to failure to warn cases. It also
applies to cases brought under Proposition 65's requirement that
no business may knowingly discharge or release a chemical known
to the state to cause cancer or reproductive toxicity into water
or onto or into land where such chemical passes or probably will
pass into any source of drinking water.
Passage of this Bill Requires Finding and Declaration that it
Furthers the Purposes of Proposition 65 and Requires a
Two-Thirds Vote. 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. (Initiative
Measure, Nov. 4, 1986, Sec. 7.) This bill contains a
legislative finding and declaration that the bill furthers the
purposes of the Safe Drinking Water and Toxic Enforcement Act of
1986 (Proposition 65). In a letter to the Chair of the
Environmental Safety and Toxic Materials Committee, the
Legislative Counsel's Office indicated that "A court may
determine that the proposed change in the enforcement provisions
of the act does not further the purposes of the initiative,
notwithstanding the legislative finding in Section 2 of the
measure [citation]."
Prior Related Legislation. AB 2379 (Campbell) of 2004, which
would have prohibited a person from bringing an action in the
public interest if the defendant has previously been a party to
a final judgment in another action brought pursuant to the act
and the person bringing the action alleges the same violation of
the act that was adjudicated, died in the Assembly Environmental
Safety and Toxic Materials Committee.
AB 1176 (Campbell) of 2003 required the court to make a finding
that a settlement is fair, reasonable, and in the public
SB 1722
Page 15
interest when approving a settlement of an action brought by a
person in the public interest. The bill, which also prohibited
a person from filing an action in the public interest or
bringing an action that alleges a violation of the act if the
defendant has previously entered into a settlement or judgment
pursuant to the act and the person filing or bringing the action
alleges the same violation of the act that was settled or
adjudicated, died in the Assembly Environmental Safety and Toxic
Materials Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
California Apartment Association (sponsor)
Allmark Properties
Apartment Association of Greater Los Angeles
Archstone Smith
California Building Industry Association
California Business Properties Association
California Chamber of Commerce
California Grocers Association
California Independent Petroleum Association
California Lodging Industry Association
California Manufacturers and Technology Association
California Paint Council
California Railroad Industry
California Small Business Alliance
Chemical Industry Council of California
Chlorine Chemistry Council
Civil Justice Association of California
Cosmetic, Toiletry and Fragrance Association
Eden Realty
Engineering and Utility Contractors Association
Grocery Manufacturers of America
Housing Authorities of the City and County of Fresno
Income Property Specialists
John Stewart Company
League of California Cities
Lumber Association of California and Nevada
Montanosa Apartments
Norwood Realty
Novartis Pharmaceuticals Corporation
Printing Industries of California
Regency Palm Court Apartments
SB 1722
Page 16
Richard Philips
Robert L. Jensen & Associates
San Francisco Apartment Association
Sharon Green Apartments
Smurfit-Stone Container Corporation
Soap & Detergent Association
South Coast Apartment Association
Spruce Grove, Inc.
Styrene Information Research Center
The Natoma Company
Tiffany Court Apartments
Villa Siena Apartments
Western Independent Refiners Association
Windsor Court Apartments
Several Individuals
Opposition
Consumer Attorneys of California (unless amended)
Analysis Prepared by : Saskia Kim / JUD. / (916) 319-2334