Judicial opinions are usually dry reading. Last month a California appellate judge brightened the day of everyone except the plaintiffs' lawyers when he reversed a trial court's decision on a Proposition 65 case.
California's Proposition 65, named the Safe Drinking Water and Toxic Enforcement Act, requires entities that employ more than 10 persons to post warning notices on their facilities if people at the facility might be exposed to any of a long list of carcinogens. The Act authorizes private parties to enforce the act and recover damages and attorneys' fees if they send a notice to violators and allow the violators 60 days to post the appropriate notice. The private enforcer must tell the state attorney general's office also to give the state a chance to enforce the act.
Two entities composed of three attorneys (who practice in the same firm) and the brother of one of them sent blanket boilerplate notices to hundreds of apartment owners and property managers, alleging that the owners and managers hadn't posted the Prop 65 notices to warn tenants and visitors that they might be exposed to a whole host of Bad Things, including (1) exhaust from cars in the parking lots, and (2) second-hand smoke from people who might smoke in or near the apartments. The list of horribles included carpeting (might emit vapors), lawn mowers (exhaust), computers (vinyl chloride and lead), brass door knockers (lead), fertilizers (lead acetate and cadmium), carbonless copy paper, chlorine in swimming pools, soap cakes in clubhouses, and alcohol that tenants might drink.
The apartment owners eventually reached a settlement and agreed to pay $636,000 to the plaintiffs (meaning pay to the lawyers who brought the case, because they're the same people). Then, at long last, the state attorney general showed up and objected to the settlement on the grounds that (1) the settlement might prevent other people from suing the apartment owners for better reasons, and (2) the attorney's fees were way too high. The trial court approved the settlement, and the AG appealed. Both the plaintiffs and the apartment association opposed the appeal.
In comes Judge Sills of the California Court of Appeal, who in a scathing opinion issued on March 24 struck down the settlement, yanked the attorney's fees from the plaintiffs, and ordered the trial court to dismiss the case completely. Let's let him talk:
"At oral argument, Anthony G. Graham [one of the plaintiffs' lawyers] proudly proclaimed that he was a 'bounty hunter. The statute was created for me.' We will have more to say about exactly who Proposition 65 was created for later, but it wasn't bounty hunters."
"Almost all the allegations in the notices are so broad as to be, literally, meaningless. They apply to every single building in this state. * * * Dried paint. Furniture. Parking lots. Wiring. Really. * * * It's all a matter of probabilities -- the theory is that somewhere among Graham & Martin's targets there's just gotta be an apartment that fits one of those descriptions." [Judges don't often use the phrase 'there's just gotta' in their opinions, and when they do, you can bet they are really, really ticked.]
"This settlement represents the perversity of a shake down process in which attorney fees are obtained by bargaining away the public's interest in warnings that might actually serve some public purpose. Thus even though Judge Dunning [one of the trial judges] (correctly) reduced the attorney fees in the second case, even that reduction was predicated on the idea that the settlement served a genuine public interest. Given the ease with which it was brought, and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead moledules or that parking lots are places where there might be auto exhaust, instead of $540,000, this legal work merited an award closer to a dollar ninety-eight."
The entire opinion is 40 pages printed out (the official PDF is here), and has a lot more good stuff, unless you're the plaintiff's law firm. The plaintiffs and their lawyers (who are, again, actually one and the same) are reportedly trying to get the opinion depublished. It's a safe bet that they will also do their best to stay out of Judge Sills' courtroom.