Metropolitan News-Enterprise


Friday, July 13, 2007


Page 1


C.A. Denies Fees for Succesful Defense of Prop. 65 Suit


By Kenneth Ofgang, Staff Writer


An alleged benefit to consumers resulting from the rejection of a toxics warning suit under Proposition 65 will not support an award of attorney fees under the private attorney general statute, the First District Court of Appeal ruled yesterday.

Justice Douglas E. Swager, writing for Div. One, agreed with Bondo Corporation, maker of a touch-up paint sold exclusively to automakers, that a prevailing defendant may, in some circumstances, be awarded attorney fees under Code of Civil Procedure Sec. 1021.5.

But Bondo’s claim that it vindicated the public interest by protecting consumers from an unnecessary fear of cancer risk that might occur if it had to put warnings on its labels is not the type of benefit that triggers the right to fees, the justice said.

The panel did uphold Alameda Superior Court Judge Bonnie Sabraw’s ruling that Bondo’s paint does not contain a sufficient amount of toluene, a widely used industrial solvent, to require warnings under the 20-year-old toxics initiative.

 In doing so, the panel said the judge used a reasonable measurement in concluding that since at least 75 percent of persons using the paint would not be exposed to the minimum amount of toluene that would trigger the warning requirement, the product poses “no significant risk” and is exempt from Proposition 65.

It also rejected plaintiff Michael DiPirro’s assertion that the “narrow issue” of whether a product exposes the public to the required level of risk—known as the “maximum allowable dose level,” or MADL—is triable by jury.

California has considered toluene a reproductive developmental toxin since 1991. Bondo has placed Proposition 65 warnings on data sheets that it sends to its customers along with wholesale shipments of its paint, but has not placed warnings on individual paint bottles.

In response to DiPirro’s complaint, the company asserted that its product is exempt under a section of the initiative providing that no warning is required if the defendant proves that exposure to the carcinogen would have “no observable effect” at 1,000 times the level present in its product.

Bondo cited a survey of California auto dealers indicating that the paint is typically applied quickly to small scratches at the dealership, and is rarely used by consumers at all. An expert retained by the plaintiffs responded that the survey—which was sent to dealers by defense counsel with a cover letter explaining that Bondo was defending itself from a suit by a “bounty hunter” and suggested that dealers would be targeted in future suits if DiPirro prevailed—was biased.

While both parties presented expert witnesses, Sabraw found the defense experts most persuasive, concluding, based on a model that included 75 and 85 percent of users of touch-up paint, that Bondo “met its burden of proof establishing that the exposure to average users of automotive touch-up paint as used in a reasonably foreseeable manner poses no significant risk as the exposure level falls below the MADL” of 13,000 micrograms per day. 

Swager said the trial judge’s ruling was “appropriate and supported by substantial evidence,” rejecting the plaintiff’s contention that Proposition 65 requires a warning unless the defendant proves that no consumer using the product in a reasonably foreseeable manner will be exposed to more than the MADL of a listed reproductive toxin.

The plaintiff’s view is “extreme,” the justice said, given the “quite onerous” burden on the defendant to prove that the level of the carcinogen in its product is less than one one-thousandth of a level at which there would be no observable effect. It was not, Swager concluded, the intent of the voters in enacting the measure to impose a warning requirement where the product was potentially dangerous only in the case of “an anomalous event or aberrant circumstance.”

Turning to the issue of attorney fees, Swager agreed with the trial judge and with the attorney general, who filed an amicus brief supporting the plaintiff on the issue, that Bondo litigated the case for its own pecuniary benefit, not to aid consumers, and did not enforce “an important right affecting the public interest” by winning the suit.

The jurist wrote:

“The flaw in Bondo’s claim to attorney fees under Code of Civil Procedure section 1021.5 is that the essence and fundamental outcome of its defense was the advancement of its own economic interests.  Although the ultimate decision in the present case may have resulted in a determination advantageous—or at least reassuring—to potential consumers that touch-up paint does not contain sufficient quantities of toluene to require warnings, we are not persuaded that any greater benefit to the virtues of Proposition 65 was conferred by Bondo in the present case.  The judgment that Proposition 65 warnings are not required on its touch-up paint tubes is a result that affects a limited class of consumers of that product....Further, the benefit conferred upon automobile manufacturers or dealerships was certainly not significant to the general public or a large class of persons.”

The case is DiPirro v. Bondo Corporation, 07 S.O.S. 4469.


Copyright 2007, Metropolitan News Company