On July 5, CBL discussed Ulta Salon Cosmetics and Fragrances, Inc. v. Travelers Property & Casualty, Inc., an unpublished decision holding that a liability insurer did not owe coverage or defense for a Proposition 65 enforcement action. Since the two published decisions dealing with this issue both came out of courts in Illinois, CBL wondered why the Second District chose to make this decision unpublished, and hence unciteable.
Well, that didn't take long. On July 11, the Second District changed its mind and ordered the opinion published. So there is now clear, published California authority to the effect that a Proposition 65 enforcement action with no allegation of injury to the plaintiff does not trigger a defense duty under a general liability policy. Unless some other Court of Appeal decides the issue differently, this decision is binding on every trial court in the state.
CBL has modified itsJuly 5 post accordingly.