In its first ruling in a bounty-hunter case against two manufacturers of the drycleaning solvent perchloroethylene ("perc") for alleged violations of Proposition 65 and the Unfair Competition Law, the San Francisco Superior Court sustained in part and overruled in part the defendants' demurrers to several causes of action, and granted Dow's motion to strike a portion of plaintiff's prayer for relief. (Case No. 995047, order entered December 4, 1998.)
Defendants The Dow Chemical Company ("Dow") and PPG Industries ("PPG") demurred to numerous causes of action filed by plaintiff, The Working Group on Carcinogens and Immune Suppressing Chemicals ("CISC"), in its first amended complaint. Originally filed in May 1998, CISC's complaint alleges that Dow and PPG have violated Proposition 65 warning requirements as to occupational, environmental and consumer exposures. In addition, CISC alleged that the defendants violated the Unfair Competition Law ("the UCL"; Business and Professions Code § 17200 et seq.) predicated upon violations of Proposition 65's discharge prohibitions as well as its warning requirement and of the California Hazard Communication Standard ("State Standard"). CISC also has asserted two innovative UCL claims, one predicated on statutory negligence (Civil Code § 1714) and another on common law battery.
Dow and PPG each demurred to the UCL claims predicated upon violations of the California Hazard Communication Standard ("State Standard") and Proposition 65's discharge prohibition. In addition, PPG, which had entered into a stipulation for entry of judgment in 1996 in a Proposition 65 action filed by bounty hunter As You Sow, demurred to the Proposition 65 failure to warn claim and related UCL claims based on the doctrine of res judicata.
Dow persuaded the Court that the UCL claim based upon violation of the State Standard is preempted by operation of the federal Occupational Safety and Health Act. Citing the Ninth Circuit's ruling in Industrial Truck Association v. Henry [125 F.3d 1305 (9th Cir. 1997)], Dow argued that the UCL, if applied as plaintiff contended, was a law "related to worker health and safety" and as such was subject to background preemption because it was not incorporated into the OSHA-approved State Standard.
Defendants failed to persuade Judge Garcia, however, that plaintiff should not be able to evade the express pre-filing 60-day notice requirements of Proposition 65 by casting its discharge claim as one brought pursuant to the UCL rather than Proposition 65. CISC's 60-day notices were confined to alleged violations of Proposition 65's warning requirement.
Judge Garcia was sympathetic to the plight of defendants hit with successive Proposition 65 and UCL claims on similar allegations. PPG, however, was unable to convince the Court that the consent judgment entered in As You Sow's prior action against PPG barred the present CISC action.
Finally, the Court granted Dow's motion to strike a portion of plaintiff's prayer for relief which sought restitution "in an amount necessary to compensate [individuals and the general public] for their injuries" allegedly caused by Dow's violations of the UCL. The Court agreed with Dow that such a request is not restitution at all, but rather a prayer for damages, a form of relief not authorized by the UCL.
For more information, please contact:
| Stanley W. Landfair - | San Francisco - (415-267-4000) |