Not Such A Good Way to Defend A Prop 65 Case

Under Proposition 65 (Health and Safety Code Section 25249.5 and following), a private party enforcer (or bounty hunter) can sue any employer of ten or more persons who has exposed persons to carcinogens or reproductive toxicants on the governor’s lists.  I’ve blogged about this here, and have a white paper on the subject here.

Anyway, before filing suit, the bounty hunter has to give sixty days notification to the potential defendant and the attorney general under section 29249.7(d)(1).  That’s what the bounty hunter did in CKE Restaurants, Inc. v. Alicia Moore (January 24, 2008) ___ Cal.App.4th ___ (Fourth Dist., 2nd Civil No. B197077).

CKE, which owns a bunch of Carl’s Junior Restaurants, responded by suing Moore for declaratory relief that its restaurants were in fact in compliance with Proposition 65.  CKE contended it was basing its suit on the declaratory relief mechanism authorized by the Court of Appeal in Baxter v. Denton (2004) 120 Cal.App.4th 333.  (Full disclosure: CalBizLit’s alter ego, Bruce Nye, was co-lead counsel in the Baxter trial and lead appellate counsel.)  Unfortunately, the evidence in support of its contention consisted of test results from one set of fried food products from one restaurant in the chain.

Ms. Moore filed a special motion to strike against CKE under California’s anti-SLAPP (“strategic lawsuit against public participation”) statute, Code of Civil Procedure section 425.16.  The court held that the filing of a Proposition 65 notice is a protected activity in furtherance of her right of petition or free speech (something previously decided by the Supreme Court in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.  Thus, the defendant, CKE, had the burden of showing a probability it would prevail on the merits, or its complaint would be stricken.

The problem is, CKE had done its testing on the cheap: instead of conducting an in depth survey of all of its restaurant, sampling on different times, different places, under different conditions, CKE had its attorney go to one store, and buy orders on one occasion of a small amount of food from that single restaurant.   It then had a lab test the food and offer evidence that those samples didn’t contain enough of the chemical in question (naphthalene) to exceed the “no significant risk level.”  Since the sampling was inadequate, and Plaintiff’s own testing showed quantities of napthalene well in excess of the NSRL, the court held that CKE had not met its burden, and its complaint was properly stricken.

California’s anti-SLAPP statute is a really interesting subject for businesses, and I'm going to try to post a white paper on the subject some day soon.

Off-topic post:

Here's some great Count Basie for your Friday:

Comments

[RegCheck]

This is a fascinating post. If I understand it correctly, your argument is that CKE defended badly by obtaining a single sample that showed naphthalene at levels below the State's established threshold of 5.8 ug/day. A sample size of 1 is not very powerful, to be sure.

The linked document says that the plaintiffs did the same thing: "In 2006, respondents obtained a sample of CKE french fries and sent the sample to a laboratory for testing. The tests revealed the presence of naphthalene." Moreover, in their 60-day notice to CKE (and others whose french fries they did not test), they implied generalizability: "Copies were served on the state Attorney General, the district attorney for each county in California and city attorneys in six major cities."

The rest of the document appears to be a factual dispute about the 1 plaintiffs' sample (alleged to contain a dose of 6.37 ug/day) and CKE's 1 sample (alleged to contain < 0.01 ppm). But the key seems to be that the trial court ruled that 1 sample was insufficient for CKE and sufficient for the plaintiffs.

Is this an accurate summary?

[Bruce Nye]

Richard,

Your summary is more or less accurate. Remember that this all happened in the context of California's Anti-SLAPP statute, which requires the plaintiff (in this case CKE) to prove there was a probability it would prevail. It sought a declaration of the general principal that it had not exposed persons to the listed carcinogen naptholene. So, as a matter of logic, it had to demonstrate that none of the food it served contained naptholene. The court held it couldn't prove that NONE of the food it served contained naptholene by providing one sample

Ms. Moore, on the other hand, had to show that SOME food served by CKE resulted in exposing persons to naptholene. This, again as a matter of logic, it could prove by submitting one sample.

Could CKE only win this case by providing samples of all its food? Surely not. Again, as a matter of logic, a broad-based sampling of food samples from different restaurants, all which were below the No Significan Risk Level for napthalene, would certainly create a strong inference that its food was compliant across the board. One sample from one restaurant, however, was not sufficient to create this inference.

[Richard Belzer]

Bruce,

Thank you for your prompt and informative reply. I gather that CKE lost because the bounty hunter needed just one sample to make a plausible case of violation, but to win a declaratory judgment CKE needed substantial empirical evidence that the bounty hunter's single sample was unrepresentative.

The "anti-SLAPP" law you've linked to seems not to have much guidance for this evidentiary burden. CKE would need to show "that there is a probability that the plaintiff will prevail on the claim," but no mention is made of what magnitude that probability must be in order to prevail. I gather than there is case law that provides guidance through this ambiguity.

What caught my eye in the first instance was the claimed co-existence of naphthalene in French fries through some artifact of cooking. Naphthalene is a petroleum and/or coal distillate; you would not expect to find it in vegetable oil. Indeed, why would anyone go looking for it there?

Two possibilities came to mind. First, the bounty hunter may have taken a sample of French fries to a lab with the direction to find everything that can be found. Whatever pops up then would become a potential Prop 65 violation.

Second, the bounty hunter might have known that there are naphthalene-like compounds that are naturally found in potatoes. Armed with that knowledge, the bounty hunter could cleverly hold CKE liable for the fact that its French fries are made from ... potatoes.