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Prop 65 Plaintiffs May Be Permitted To Request Jury Trials

Prop 65 Plaintiffs May Be Permitted to Request Jury Trials

Proposition 65 defendants may now have juries decide enforcement actions brought against them. An appellate ruling in June held that jury trials are permitted for at least some portion of consumer products cases, including those brought for violations of California’s “right to know” law, Proposition 65. This ruling reverses a 2007 appellate court opinion.

The right to jury trials in Proposition 65 lawsuits was first examined in a 2007 case, DiPirro v. Bondo Corp., 153 Cal.App.4th 150. In that case, the court concluded that there was no right to a jury trial in Proposition 65 cases. But in June of this year, the court in Nationwide Biweekly Administration, Inc. v. Superior Court, 24 Cal. App. 5th 438 (2018), concluded the opposite, finding that a defendant may be granted a trial by jury for the purposes of deciding its liability for civil penalties. However, remedies (including calculation of civil penalties) would continue to be decided by a judge.

Even though Nationwide did not specifically address a Proposition 65 claim, it set aside the ruling in DiPirro, which focused on a Proposition 65 claim. That case raised the question of whether the dispute should be decided based on principles of law or equity. Classification of a dispute as a legal or equitable one determines whether there is a right to a jury trial: if the matter is inherently legal, there is a right to a jury trial; if inherently equitable, there is not.

The court in DiPirro concluded that because Proposition 65 is inherently an equitable as opposed to a legal cause of action, the defendant does not have a right to a jury trial for any aspect of the lawsuit. In Nationwide, however, the court reviewed that ruling and came to a different conclusion, finding DiPirro’s reasoning flawed and concluding that equitable principles are only applicable when determining the amount of the penalty in an enforcement action. According to Nationwide, however, the issue of liability arising from a claim for a statutory violation is a legal matter – hence the right to a jury trial on that issue.

This conclusion reflects decisions in both the United States Supreme Court and the California Supreme Court. Both Courts have reaffirmed that in actions seeking civil penalties for restitution or deterrence of behavior, English common law would have required a trial in a court of law and the defendant would have the right to a jury. Thus, the defendant is entitled to a trial by jury for this specific phase of the litigation.

Most Proposition 65 cases settle because the cost of litigating them usually far outweigh the cost of settlement. This ruling represents another thumb on the settle-or-litigate scale, since jury trials can be even more costly.

Grimaldi Law Offices has been advising clients for over 20 years on chemical and product law. For knowledgeable advice and in-depth analysis on your Prop 65 compliance obligations, contact Grimaldi Law Offices at (415) 463-5186 or email us at info@grimaldilawoffices.com.

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Ann Grimaldi

Ms. Grimaldi maintains a diverse environmental law practice focusing on chemical and product regulation and litigation defense. Her practice areas include Proposition 65, California's Safer Consumer Products Regulations, California's Rigid Plastic Packaging Container Act and the federal Toxic Substances Control Act. Ms. Grimaldi graduated from the University of California Hastings College of the Law magna cum laude and holds a Bachelor of Science Degree in Bacteriology from University of California, Davis. Prior to attending law school, she worked as a research assistant in laboratories at the University of California, San Francisco Cancer Research Institute and at the University of California, San Francisco School of Medicine.

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