California Code of Regulations › Title 11 - Law › Division 4 - Proposition 65 Private Enforcement › Chapter 3 - Settlement Guidelines › Section 3201 - Attorney's Fees

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
Code of Civil Procedure section
				  1021.5
				  permits an award of attorney's fees to a "successful party ... in any action which
				  has resulted in the enforcement of an important right affecting the public interest
				  if:
(a) a significant benefit ... has been
				conferred on the general public or a large class of persons, (b) the necessity and
				financial burden of private enforcement ... are such as to make the award
				appropriate, and (c) such fees should not in the interest of justice be paid out of
				the recovery, if any." These guidelines are intended to be consistent with existing
				law interpreting Code of Civil Procedure section
				1021.5,
				but provide assistance to the litigants and the court in applying them to issues
				commonly arising under Proposition 65. These guidelines apply to settlements under
				which the basis for a fee award is provided by Code of Civil Procedure section
				1021.5.
				Where there is a different or additional basis for an award of fees, parts of these
				guidelines may not apply. Since the Legislature has mandated that the court must
				determine that the attorney's fees in all settlements of Private Proposition 65
				actions must be "reasonable under California law," the fact that the defendant
				agreed to pay the fee does not automatically render the fee reasonable. The fact
				that the fee award is part of a settlement, however, may justify applying a somewhat
				less exacting review of each element of the fee claim than would be applied in a
				contested fee application.
(a)
				Successful Party. The fact that a defendant changed its conduct prior to entry of a
				court order or judgment does not preclude a finding that the plaintiff was
				successful. If the plaintiff's action was the cause or "catalyst" of the change in
				conduct, the plaintiff may be deemed successful.
(b) Public Benefit.
(1) In a case alleging failure to warn, a
				settlement that provides for the giving of a clear and reasonable warning, where
				there had been no warning provided prior to the sixty-day notice, for an exposure
				that appears to require a warning, is presumed to confer a significant benefit on
				the public. If there is no evidence of an exposure for which a warning plausibly is
				required, there is no significant public benefit, even if a warning is given. If the
				relief consists of minor or technical changes in the language, appearance, or
				location of a warning in a manner that is not likely to significantly increase its
				visibility or effectiveness in communicating the warning to the exposed persons,
				there is no significant public benefit. Where a settlement sets forth a standard or
				formula for when a given product requires a warning, supporting evidence should show
				that at least some of the products in controversy in the action either are, or at
				some time were, above the warning level, or the existence of the standard or formula
				itself may not establish the existence of a significant public benefit.
(2) Reformulation of a product, changes in air
				emissions, or other changes in the defendant's practices that reduce or eliminate
				the exposure to a listed chemical, in lieu of the provision of a warning, are
				presumed to confer a significant benefit on the public. Where a settlement sets
				forth a standard or formula for reformulation, supporting evidence should show that
				at least some of the products in controversy in the action either are, or at some
				time relevant to the litigation were, above the agreed-upon reformulation standard
				or formula, or else the mere agreement to a reformulation standard or formula may
				not establish the existence of a significant public benefit. Similarly, where a
				settlement requires changes in air emissions or other changes in the defendant's
				practices, supporting evidence should show that the changes in air emissions or to
				the defendant's practices will result in emissions or exposures that are less than
				the emissions or exposures that either are present or were present at some time
				relevant to the litigation, or else the mere agreement to make the changes may not
				establish the existence of a significant public benefit.
(3) In a case alleging violations of Health and
				Safety Code section
				25249.5,
				the reduction or elimination of the discharge of listed chemicals establishes a
				significant public benefit.