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Leeman v. Adams Extract & Spice, LLC

California Court of Appeals, First District, Fourth Division

April 28, 2015

WHITNEY R. LEEMAN, Plaintiff and Appellant,
v.
ADAMS EXTRACT & SPICE, LLC, Defendant and Respondent.

San Francisco City & County Super. Ct. No. CGC-13-529493

Page 1368

[Copyrighted Material Omitted]

Page 1369

COUNSEL

The Chanler Group, Clifford A. Chanler, California Appeals & Writs and Jacques LeBouef for Appellant.

No appearance for Respondent.

OPINION

RUVOLO, P. J.

I.

INTRODUCTION

This appeal arises from a private enforcement action filed by appellant Whitney R. Leeman, Ph.D. (Leeman), pursuant to Health and Safety Code

Page 1370

Section 25249.5 et seq., known as Proposition 65. The complaint alleged that respondent Adams Extract & Spice, LLC (Adams) was in violation of the provisions of Proposition 65 by failing to issue an adequate warning that its product contained a chemical identified on the Governor’s list “of those chemicals known to the state to cause cancer or reproductive toxicity....” (Health & Saf. Code, § 25249.8, subd. (a).) In addition to other remedies, Proposition 65 provides that if the plaintiff is successful in bringing an action, he or she is entitled to recover attorney fees under Code of Civil Procedure section 1021.5. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560-561 [21 Cal.Rptr.3d 331, 101 P.3d 140].)

The parties ultimately settled their dispute shortly before trial. The settlement included a stipulated award of $72, 500.00 for attorney fees and costs, incurred by Leeman relating to the investigation, litigation and settlement of the case.

In confirming the settlement, the court modified the attorney fee amount by reducing it by almost exactly 50 percent to $35, 839.67. A subsequent motion was made to correct and modify the judgment by, inter alia, increasing the fee award to that agreed to by the parties. Adams joined in the motion. While modifying the judgment in another respect not material to this appeal, that portion of the motion relating to attorney fees was denied without comment.

We agree with Leeman that the trial court committed reversible error in unilaterally modifying that single provision in the parties’ settlement agreement and stipulated consent judgment relating to attorney fees. Therefore, we reverse and remand the case for further proceedings consistent with this opinion.

II.

FACTUAL AND PROCEDURAL BACKGROUNDS

Leeman filed a complaint seeking civil penalties and injunctive relief against Adams on March 13, 2013, in San Francisco Superior Court. The complaint alleged that Adams included a carcinogenic chemical known as 4-Methylimidazole (4-MEI) in its food extracts, flavoring, and food coloring products without an adequate warning as required by Proposition 65, because 4-MEI was a chemical listed by California as known to cause cancer. In addition to preliminary and permanent injunctions requiring Adams to provide a “clear and reasonable warning” about the inclusion of 4-MEI in its products, the complaint sought civil penalties against Adams, pursuant to Health and Safety Code section 25249.7, subdivision (b), in the amount of $2, 500.00 for each day of its violation of Proposition 65. The following month,

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Adams filed its answer to the complaint generally denying the complaint’s allegations, and asserting 18 separate ...


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