This Case May Contain Toxic Logic

Did you realize that seat cushion foam, lawn mowers, crayons and roofs contain potentially deadly toxins? How about marking pens and exercise equipment?

Neither did three appellate justices who were shocked out of their socks by an unbe-lievably huge list of violations compiled by a couple of Orange County lawyers who sued the owners and managers of more than 1,000 apartment complexes for allegedly violating Proposition 65, the 1986 ballot measure requiring posted warnings about possible exposure to toxic substances.

The sheer audacity of Costa Mesa attorneys Anthony Graham and Michael Martin — self-styled “bounty hunters” involved in what the court called a “shake down” complete with “straw plaintiffs” — forced the justices to reverse a settlement that gave the men huge attorneys fees while doing nothing to protect the public from harm.

“To affirm,” Justice David Sills of Santa Ana’s Fourth District Court of Appeal wrote on Friday in Consumer Defense Group v. Rental Housing Industry Members, 06 C.D.O.S. 2503, “would be to nullify the regulations which require meaningful notice to prosecutorial authorities.”

Justices William Rylaarsdam and Rich-ard Fybel concurred. The three justices were astonished by two notices the principals of Graham & Martin insisted should be posted at the apartment complexes.

One demanded warnings because all had parking facilities and allowed smoking on the premises. And the other insisted on warnings for dozens of “additional things about each apartment” that, the court noted, were “indistinguishable from every other building in the state.”

A few items on the lawyers’ hit list: copy paper, charcoal, fireplaces, arts and crafts hobbies, water meters, door knobs, lighting fixtures, carpet cleaners, saws, weed eaters, keyboards and mouse devices, various meat products, alcoholic beverages and emergency generators. And there were far more.

“If one were to take the notices at face value,” Sills wrote, “a reasonable person would conclude this: All you need to have is paint on the walls, furniture inside and a parking lot, and if you haven’t posted a Proposition 65 warning, you are a ‘violator’ of Proposition 65.”

He and the other justices were appalled by what they called notices in a “stentorian Wizard-of-Oz-berates-Dorothy legal style of an indictment” aimed at frightening “all but the most hardy of targets” into settlement, and the more than $540,000 in attorneys fees awarded Graham & Martin.

“Given the ease with which it was brought,” Sills wrote, “and the absolute lack of any real public benefit from telling people that things like dried paint may be slowly emitting lead molecules 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 court also was irritated with the defendants, who settled only after getting concessions from any future Prop 65 litigation that might be brought by anyone else, including the attorney general.

“In sum,” Sills wrote, “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 interest.”

In a footnote, Sills expressed irritation that during oral arguments Graham “proudly proclaimed that he was a ‘bounty hunter. The statute was created for me.’” Sills said he would “have more to say about exactly who Proposition 65 was created for later, but it wasn’t bounty hunters.”

Given the tone of the opinion, Graham and Martin got off lightly. Reference to the State Bar for punishment is a time-honored appellate court response.

Mike McKee


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