People v. ConAgra Grocery Products Co. ( 2017 )

Filed 11/14/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
THE PEOPLE, H040880
(Santa Clara County
Plaintiff, Cross-defendant and Super. Ct. No. CV788657)
Respondent,
v.
CONAGRA GROCERY PRODUCTS
COMPANY et al.,
Defendants and Appellants;
THE SHERWIN-WILLIAMS
COMPANY,
Defendant, Cross-complainant and
Appellant.
After a lengthy court trial, the People of the State of California (plaintiff) prevailed in
this representative public nuisance action against defendants ConAgra Grocery Products
Company (ConAgra), NL Industries, Inc. (NL), and the Sherwin-Williams Company
1
(SWC). The trial court ordered ConAgra, NL, and SWC to pay $1.15 billion into a fund to
be used to abate the public nuisance created by interior residential lead paint in the 10
1
Plaintiff’s action was brought on behalf of the residents of Santa Clara County, San
Francisco City and County, Alameda County, Los Angeles County, Monterey County, City
of Oakland, City of San Diego, San Mateo County, Solano County, and Ventura County. In
this opinion, we will refer to these two cities, seven counties, and one city and county as the
10 jurisdictions.
California jurisdictions represented by plaintiff. ConAgra, NL, and SWC (collectively
defendants) challenge the court’s judgment on many grounds. They contend, among other
things, that the court’s judgment is not supported by substantial evidence of knowledge,
promotion, causation, or abatability. Defendants also challenge the judgment on separation
of powers and due process grounds, claim that they were erroneously denied a jury trial, and
2
assert that the trial court made other prejudicial procedural and evidentiary errors. We
conclude that the trial court’s judgment must be reversed because substantial evidence does
not support causation as to residences built after 1950. We also direct the trial court to hold
further proceedings on remand regarding the appointment of a suitable receiver. We reject
the remainder of defendants’ contentions.
I. Plaintiff’s Evidence at Trial
“[L]ead is a toxin and causes irreversible brain damage.” Childhood lead poisoning
is “the number one environmental health problem for children” in California. “Childhood
lead poisoning at the level at which it is occurring is definitely an epidemic in California.”
“The most common source of lead exposure to children in California is lead-based paint and
3
how it contributes to soil and dust contamination in and around housing.” Experts have
reached a consensus “that lead-based paint is a predominant source of childhood lead
4
exposure [in] pre-1978 housing.” Children in pre-1946 housing are subject to “three times
2
This is but a partial list of their contentions. SWC and ConAgra also each assert an
individual contention.
3
“Lead-based paint” is not the only source of childhood lead exposure. Children in
the 10 jurisdictions have also been exposed to lead from occupational sources (such as lead
dust brought home by construction workers), leaded gasoline, imported goods (such as
pottery, Mexican candy, and toys), home remedies (such as “Greta” and “Azarcon”),
cosmetics, jewelry, spices, and chapulines (grasshoppers).
4
“ ‘Lead-based paint’ means paint or other surface coatings that contain an amount of
lead equal to, or in excess of: [¶] (a) one milligram per square centimeter (1.0 mg/cm2); or
2
the percentage of elevations in blood lead level” as those in post-1978 housing. Lead in
homes accounts for at least 70 percent of all childhood lead poisonings. Lead paint is a
major contributor to blood lead levels because the lead content of paint is high, while most
other lead sources have only trace amounts. And the most common type of lead paint
contains white lead carbonate, which is highly absorbable. Between 1929 and 1974, more
than 75 percent of the white lead carbonate produced in this country was used in lead paint.
Through the 1940s, lead paint contained as much as 50 percent lead.
“Children are exceptionally vulnerable” to lead because “they explore their
environment with typical hand-to-mouth contact behavior.” Lead paint chips “taste sweet,”
which may explain why children ingest them. Young children are at especially high risk
from residential lead paint because they spend the vast majority of their time in their homes.
Infants and young children also absorb much more lead than older children and adults.
Because children are smaller, lead intake has a proportionally larger impact on their bodies,
and children absorb lead more easily. Children are also more vulnerable to the toxic effects
of lead because their biological systems are still developing.
The “brain effects [of lead exposure] in children are irreversible,” so the “only option
is to prevent the exposure in the first place.” There is “no safe exposure level” for lead
“[b]ecause no measurable level of lead in blood is known to be without deleterious effects,
and because once engendered the effects appear to be irreversible.” Blood lead levels less
5
than 5 micrograms per deciliter (mcg/dL) can cause children to suffer impaired intellect
6
and behavioral problems. “[E]ven among children with the lowest levels of lead
exposure,” studies suggest that “there is ongoing harm down to the lowest measurable
[¶] (b) half of one percent (0.5%) by weight.” (Cal. Code Regs., tit. 17, § 35033.) This is
what we mean when we use “lead paint” in this opinion.
5
A microgram (mcg) is a millionth of a gram. A deciliter (dL) is a tenth of a liter.
6
Bone lead levels are a better indicator than blood lead levels of the impact of lead on
intellectual abilities. Blood lead levels may underestimate the impact of lead exposure.
3
levels.” “[B]lood lead levels below 5 micrograms per deciliter are associated with
decreased academic achievement, diminished IQ scores, or intellectual abilities, cognitive
abilities, attention-related behavior problems and antisocial behaviors . . . .” Lead exposure
as a child continues to impact the body when the child becomes an adult. It “has
reproductive effects, it has impacts on things like birth weight, and even fertility, delays
fertility,” and it can be associated with cardiovascular disease.
Even intact lead paint poses a potential risk of future lead poisoning to children
because lead paint surfaces will inevitably deteriorate. “[A]ll paint eventually deteriorates.
On certain surfaces it deteriorates more rapidly than others[;] mainly those surfaces are
high-use surfaces, such as windows and doors.” Paint deteriorates when it is exposed to
ultraviolet light, water, fungus (such as mildew), friction, or abrasion. More than one-third
7
of pre-1978 homes nationwide with intact lead paint have lead dust. In contrast, only 6
percent of homes without lead paint have lead dust. Lead in soil adjacent to homes
generally comes from lead paint, not leaded gas emissions, because post-1978 housing has
8
no soil lead.
Most of the housing in the 10 jurisdictions was built before 1980, with the
9
percentages ranging from 51 to 83 percent and is therefore presumed to contain lead paint.
7
“ ‘Lead-contaminated dust’ means dust that contains an amount of lead equal to, or in
excess of: [¶] (a) forty micrograms per square foot (40mg/ft2) for interior floor surfaces; or
[¶] (b) two hundred and fifty micrograms per square foot (250mg/ft2) for interior horizontal
surfaces; or [¶] (c) four hundred micrograms per square foot (400mg/ft2) for exterior floor
and exterior horizontal surfaces.” (Cal. Code Regs., tit. 17, § 35035.)
8
“ ‘Lead-contaminated soil’ means bare soil that contains an amount of lead equal to,
or in excess of, four hundred parts per million (400 ppm) in children’s play areas and one
thousand parts per million (1000 ppm) in all other areas.” (Cal. Code Regs., tit. 17,
§ 35036.)
9
“ ‘Presumed lead-based paint’ means paint or surface coating affixed to a component
in or on a structure constructed prior to January 1, 1978.” (Cal. Code Regs., tit. 17,
§ 35043.)
4
10
Pre-1940 homes are three times as likely to have lead-based paint hazards, with 86 percent
having lead-based paint hazards and 67 percent having “significant” lead-based paint
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hazards such as“deteriorated lead-based paint.” “[H]omes with lead-based paint are 10
times more likely than homes without lead-based paint to have dust lead levels on floors and
on window sills above the federal limits.” And “homes with lead-based paint are more
likely to have soil lead levels on the exterior of the home above the EPA [(federal
Environmental Protection Agency)] criteria limits.” Even when lead paint is “intact,” soil
levels can exceed EPA limits. Lead paint creates soil lead “by the friction and impact
surfaces, opening and closing windows and doors on a home with lead-based paint,” from
the deterioration of exterior lead paint, and from “sanding and scraping” when repainting.
When there is lead in the soil, it is often tracked into the home, creating household lead
dust.
Since the 19th century, the medical profession has recognized that lead paint is toxic
and a poison. An 1878 article by an English doctor recognized that the use of lead paint on
the interiors of homes could have poisonous effects on the people who lived in the home.
An 1895 article by a San Francisco doctor recounted how a child had been poisoned by lead
paint that she had scratched off her crib. A 1904 article by a doctor in Queensland,
Australia described multiple cases of children being poisoned by lead dust from lead paint
on walls and railings of a house. He believed that the lead dust had been ingested by the
children after it got on their fingers and thereby into their mouths. His investigation found
10
“ ‘Lead hazard’ means deteriorated lead-based paint, lead contaminated dust, lead
contaminated soil, disturbing lead-based paint or presumed lead-based paint without
containment, or any other nuisance which may result in persistent and quantifiable lead
exposure.” (Cal. Code Regs., tit. 17, § 35037.)
11
“ ‘Deteriorated lead-based paint’ means lead-based paint or presumed lead-based
paint that is cracking, chalking, flaking, chipping, peeling, non-intact, failed, or otherwise
separating from a component.” (Cal. Code Regs., tit. 17, § 35022.)
5
12
lead dust on interior walls where the paint was still in “good condition.” An authoritative
1907 textbook edited by a noted American doctor, which was widely used in medical
education, discussed the 1904 article and observed that children had been poisoned by lead
13
paint on woodwork in their homes that had produced lead dust and gotten onto their hands.
These articles “recognized the dust pathway from paint on a wall, to dust on the floor, to the
hands of children, into their mouth[s], as a way of ingestion.”
Many medical articles by doctors in the early 20th century described lead poisoning
of children from lead paint. A 1917 article by an American doctor discussed the 1904
Australian article and also described the cases of multiple children who had gnawed lead
paint off furniture and died. A 1926 article discussed the case of a child who had died from
lead poisoning after she “gnawed” lead paint off her bed. A 1933 article pointed out that
“children get exposed to lead-based paint in the homes by their common tendency to put
things in their mouth[s].” It also stated that most cases involved infants and small children
and that children were more susceptible to lead poisoning than adults. Another 1933 article
noted: “It must be obvious that for every child who becomes paralysed by lead there must
be literally hundreds who have been affected by the poison in some more or less minor
degree.” “[T]he extent of the lead paint menace has been minimized, and in consequence,
literally thousands of children have been allowed to run the risks of lead absorption.”
12
In 1922, Queensland, Australia banned lead paint from areas to which young children
had access.
13
Plaintiff presented an expert who testified that in 1909 public health officials and
doctors were suggesting that there be legislation banning lead paint due to the risk of
exposure for children. This expert cited his own 2005 article in which he asserted that
researchers had stated in 1909 that “[p]aint containing lead should never be employed where
children, especially young children, are accustomed to play,” and “[a] number of European
countries banned lead-based paint soon thereafter.” He also relied on a seven-page
“annotated bibliography” that he had prepared, which listed, but did not include, numerous
articles that he had reviewed.
6
Published medical articles in this era recognized that even small amounts of lead
could cause children to suffer harm. A 1931 British Medical Journal article discussed the
“insidious” effects of “infinitesimal doses of lead” over a long period of time. A 1935
American medical journal article suggested that there were “insidious” “cumulative effects
of infinitesimal doses of lead” that could be “obscure.” A 1938 British medical article
stated that “the harmful effects of continued small doses of lead begin from the moment the
lead is absorbed” and can lead to a long series of “subtle” harms. It opined that “there is no
threshold below which still smaller doses can be regarded as being without some adverse
effect.” A 1943 American medical journal article discussed the impact of early childhood
subacute lead poisoning on a child’s intelligence and subsequent academic achievement; it
called for a ban on interior residential use of lead paint.
Knowledge about the toxic properties of lead paint was not limited to the medical
profession. In May 1910, the United States House of Representatives’ Committee on
Interstate and Foreign Commerce held a hearing on a bill aimed at preventing lead
poisoning. The bill would have required products containing white lead to “be labeled
conspicuously and securely with a skull and crossbones and the words: ‘White lead:
poison.’ ” The sponsor of the bill noted that France had already “entirely prohibited the use
of white lead because of its injurious character” and that “all countries of Europe” had
already enacted legislation like his proposal. He spoke of “the injurious effect of these
atoms of white lead that are filling the air now; they come loose from doors, from window
sills, from everywhere, we inhale them and consequently disease is caused which physicians
do not understand and can not say what it really is, but it is, in many cases, simply a case of
lead poisoning.” Another proponent of the bill observed that “the most eminent scientists
and doctors of Great Britain” had “found that the small particles that result from chalking,
especially from internal painting and external painting as well, when taken by inhalation
into the lungs, are absorbed and become a poison to the system.” This congressional
7
hearing was attended by an attorney for “practically all of the paint manufacturers of this
country” who stated their opposition to the proposal. The bill failed.
A few years later, in 1914, Henry Gardner, who was the assistant director of the
Institute of Industrial Research and also the director of the Paint Manufacturers
Association’s Educational Bureau, published a speech that he had given to the International
Association of Master House Painters and Decorators of the United States and Canada at
that association’s annual convention in February 1914. In this speech, Gardner
acknowledged that “the presence of [white lead] dust in the atmosphere of a room is very
dangerous to the health of the inmates” and that “[l]ead poisoning may occur through
inhalation of [lead] dust . . . .”
Despite this evidence of the toxic properties of white lead, the main use for white
14
lead in the 20th century was as a pigment for paint. NL, SWC, and ConAgra’s
predecessor, Fuller, were among the handful of companies that manufactured white lead
carbonate pigments during the 20th century, and all three of them used white lead carbonate
pigment to make paint. NL, SWC, and Fuller were all leaders in the lead paint industry, and
they knew at that time that lead dust was poisonous. They were also aware that lead paint
“powders and chalks” “soon after it is applied” and routinely produces lead dust after a
couple of years.
In 1922, NL, SWC, and Fuller were making white lead carbonate pigment, using it in
their paints, and promoting white lead pigment in paint for use on and in residential homes.
Sales of white lead peaked in 1922. There was a decrease in the use of lead paint in the
1920s and early 1930s. By 1944, during World War II, the use of lead paint for residential
interiors had declined to a low level.
14
Plaintiff’s experts defined “lead-based paint” as either paint containing lead pigment
or paint that was “either considered 100 percent or 70 percent pure white lead . . . or
alternatively mixed paint with . . . ‘high-lead content.’ ”
8
NL manufactured white lead carbonate pigment from 1891 to 1978, and it had
manufacturing facilities in San Francisco and Los Angeles that manufactured white lead
carbonate pigments in California between 1900 and 1972. It sold those pigments to
California paint manufacturers, used them in its own paint products sold in California, and
advertised and promoted paint products containing those pigments for residential use within
the 10 jurisdictions during that same period. NL “kept up with the medical literature” about
lead poisoning. NL’s 1912 annual report acknowledged that lead dust was a “danger to the
health” of workers exposed to it in the making of white lead. By the mid to late 1920s, NL
knew that children who chewed on things painted with lead paint could get lead poisoning
and die from it. Nevertheless, NL’s lead paints were marketed for residential use and sold
in and advertised in the 10 jurisdictions between 1900 and 1972. NL produced a handbook
for consumers in 1950 that instructed them to use lead paint on the interiors of their homes.
ConAgra’s predecessor, Fuller, manufactured white lead carbonate pigment from
1894 until at least 1958. Fuller manufactured white lead carbonate pigment at its San
Francisco factory until 1898, when it moved its factory to South San Francisco. At this
factory, Fuller refined white lead carbonate and was a “major producer” of lead paint.
Fuller also had a plant in Los Angeles. Fuller’s lead paints were sold at its own stores and
15
by independent dealers in all 10 jurisdictions between 1894 and 1961. Fuller knew that
lead dust was poisonous. In 1919, an article about Fuller’s South San Francisco plant noted
that lead dust is poisonous.
SWC began manufacturing paints containing white lead carbonate pigments in 1880.
SWC’s internal publication, The Chameleon, published an article in 1900 that
acknowledged the many dangers of lead paint. It stated: “A familiar characteristic of white
lead is its tendency to crumble from the surface, popularly known as chalking”; “It is also
familiarly known that white lead is a deadly cumulative poison”; and “This noxious quality
15
Fuller also produced and sold non-lead paints.
9
becomes serious in a paint that disintegrates and is blown about by the wind.” In 1910,
SWC bought a lead mine, which it utilized to manufacture white lead carbonate pigment
from 1910 to 1947 for use in its own paints. SWC stopped manufacturing white lead
16
carbonate in 1947, but it continued to make lead paint until 1958. SWC had plants in
Emeryville and later in Los Angeles that manufactured paint containing white lead
carbonate. SWC continued to sell lead paint until 1972. SWC removed all lead from its
residential paints by the end of 1972.
Two trade associations, the Lead Industries Association (LIA) and the National
Paint, Varnish, and Lacquer Association (NPVLA) promoted the use of lead paint. Fuller,
NL, and SWC were members of both the LIA and the NPVLA. The LIA, which was
created in 1928, promoted the use of white lead pigments in residential paint by sponsoring
two advertising campaigns, the Forest Products Better Paint campaign and the White Lead
Promotion campaign, in the first half of the 20th century. The LIA knew that white lead
was being attacked from “a health standpoint,” and these campaigns were designed to
increase the consumption of lead.
The LIA provided its members with information about lead hazards and lead
poisoning that was available in medical and scientific literature at the time. NL was present
at a 1930 LIA board of directors meeting at which a 1930 article about lead poisoning of
babies and children from chewing lead paint off of cribs was discussed. The article, which
ran in the U.S. Daily, a publication “Presenting the Official News” of the government,
stated that lead poisoning from “chewing paint from toys, cradles, and woodwork” was “a
more frequent occurrence” than previously thought and noted that even a small amount of
lead could kill a child. The article also noted that “[c]hildren are very susceptible to lead”
and that the “most common sources of lead poisoning in children are paint on various
objects within reach of a child and lead pipes . . . .”
16
Some of SWC’s paints did not contain white lead pigment.
10
In 1934, the LIA launched its Forest Products campaign, which promoted lead paint
for interior residential use. At a 1935 LIA annual meeting, it was acknowledged that
childhood lead poisoning disproportionately affected poor and minority children and that
there were thousands of cases annually. Yet the LIA fought against the imposition of
regulations on lead. A 1937 LIA conference on lead poisoning was attended by
representatives from NL and SWC, and Fuller received a transcript of the conference. Both
industrial lead poisoning and childhood lead poisoning were discussed at the 1937
conference. There was discussion of research that showed it was nearly impossible to get
rid of lead once it got into a child’s body. Attendees at the conference were asked by the
head of the LIA not to discuss what they learned at the conference in order to avoid
unfavorable publicity connecting lead paint to lead poisoning. The LIA’s Forest Products
campaign continued through 1941.
The NPVLA, unlike the LIA, represented paint manufacturers regardless of whether
17
they used lead pigments. The NPVLA ran advertising campaigns promoting paint
throughout the first half of the 20th century. One was called Save the Surface in 1920 and
1921. The other was called Clean Up Paint Up and was ongoing in 1949. All three
companies were involved in both advertising campaigns. Neither of the NPVLA’s
campaigns distinguished between lead paint and non-lead paint, but these campaigns
included advertisements promoting all three companies’ lead paint products.
Lead paint was banned in the United States in 1978. (County of Santa Clara v.
Atlantic Richfield Co. (2006) 137 Cal. App. 4th 292, 302 (Santa Clara I).) In 1991, the
Centers for Disease Control (the CDC) set the “level of concern” for lead at a blood lead
18
level (BLL) of 10 mcg/dL. In 2012, the CDC replaced this standard with a “reference
17
Fuller was a member of the NPVLA from 1933 to 1962. NL was an NPVLA
member from 1933 to 1977. SWC was a member of the NPVLA from 1933 to 1981.
18
The impact of blood lead levels below 10 mcg/dL was not well understood until
2005.
11
value” of 5 mcg/dL, which represents the top 2.5 percent of BLLs in children under the age
of five. “[T]he reference value simply denotes the worst or the highest exposed children in
a population.” At that point, national data reflected that 5.3 percent of children living in
pre-1950 housing had BLLs exceeding that value, while only 0.4 percent of children living
in post-1978 housing had BLLs exceeding that value.
In 1995, the California Legislature enacted the Childhood Lead Poisoning Prevention
Act of 1991. (Health & Saf. Code, §§ 105275, 124125; Stats. 1995, ch. 415, § 8.) This act
created the Childhood Lead Poisoning Prevention Program (CLPPP). (Health & Saf. Code,
§ 124125.) The Childhood Lead Poisoning Prevention Branch (CLPPB), a division of
California’s Department of Public Health, was accorded the role of coordinating the state’s
approach to childhood lead exposure and childhood lead poisoning. The CLPPB devotes its
resources to outreach, education, case management programs to track those who have been
lead poisoned or exposed to lead, and programs to address lead hazards. The CLPPB also
contracts with and supervises 43 county CLPPPs.
The CLPPB focuses on children who are one or two years old. Health care providers
are required to order that a child be screened for lead poisoning at age one and at age two if
“the child receives services from a publicly funded program for low-income children.”
(Cal. Code Regs., tit. 17, § 37100.) Medical laboratories are required to report all BLLs to
the CLPPB. (Health & Saf. Code, § 124130; Stats. 2002, ch. 931, § 11.) The CLPPB
considers it a “case” of lead poisoning if a child’s BLL exceeds 19.5 mcg/dL or persistently
exceeds 14.5 mcg/dL. In such cases, a public health nurse and an environmental health
specialist visit the child’s home to try to determine potential sources of the lead poisoning.
National average BLLs have declined precipitously since the 1970s, falling by about
90 percent. In 1980, it was estimated that 88.3 percent of children had BLLs in excess of 10
mcg/dL. By 2008, it was estimated that less than one percent of children had BLLs over 10
12
19
mcg/dL. Nevertheless, in 2010, around 22,000 children under the age of six in California
had BLLs over 4.5 mcg/dL. And at the time of trial in 2013, California had more than
2,000 children with BLLs over 10 mcg/dL and more than 15,000 additional children with
BLLs over 5 mcg/dL. Children in California with BLLs over 9.5 mcg/dL represented 0.35
20
percent of California’s children.
Children in the 10 jurisdictions are continuing to be exposed to lead from the lead
paint in their homes and to suffer deleterious effects from that lead. Although only a small
percentage of the children in these jurisdictions are screened for lead, thousands of children
are found to have BLLs of concern each year.
Lead poisoning from lead paint is “the number one environmental children’s
health issue in Alameda County.” The primary cause of lead poisoning in Alameda County
is lead paint. About 75 percent of Alameda County’s homes are pre-1980, which amounts
to 430,000 units. Nearly 174,000 of those units are pre-1950. Alameda County is able to
screen only 46 percent of the children under the age of six who are poor and live in pre-
1978 homes. Alameda County’s CLPPP opens a case only when there is a lead-poisoned
child with a BLL of 20 mcg/dL or two BLLs of 15 mcg/dL. In 2012, 14 children met that
standard in Alameda County. That triggers an investigation of the home and education of
the parents about sources of exposure. There is no funding for remediation. Alameda
County’s CLPPP also tries to do outreach and education to families with children who have
21
BLLs of 5 mcg/dL or higher, but there is no funding for dealing with these children. In
2010, there were 14 children in that category.
19
The prevalence of elevated BLLs in children under the age of six in California
appeared to have declined 60 percent from 2003 to 2010.
20
Because the laboratories doing the tests lack the ability to report precise results,
BLLs of 4.5 are rounded up to 5 and BLLs of 9.5 are rounded up to 10.
21
The limits of detection do not permit such precise measurement, so the CLPPP
actually provides these services when the BLL is over 4.5 mcg/dL.
13
Lead poisoning is the top pediatric environmental health problem in Los Angeles
County. The most common source of lead poisoning in Los Angeles County is lead paint
chips and lead paint dust. Lead paint is a “severe environmental health concern” in Los
Angeles County. In Los Angeles County, 77 percent of the housing was built before 1978,
which is more than 2.6 million housing units. More than 900,000 of those housing units are
pre-1950. Los Angeles County’s investigators have often found lead paint dust in homes
with intact lead paint. In 2010, Los Angeles County had about 6,500 children under the age
of six with BLLs of greater than 4.5 mcg/dl. Los Angeles County’s CLPPP generally does
not do “primary prevention” but only screening and “secondary prevention.” Los Angeles
County’s CLPPP handles about 75 to 100 cases of lead poisoning each year. In at least 75
percent of those cases, lead paint is a potential source of the lead poisoning. At least 70
percent of those cases involve pre-1978 housing.
Lead paint is a serious environmental health concern in Monterey County. In
Monterey County, 66 percent of the housing was built before 1980, which accounts for
between 89,000 and 90,000 units. Between 18,000 and 19,000 of those units were built
before 1950. Each year, Monterey County’s CLPPP receives between 13 and 15 new cases
where there has been a report of a BLL of 20 mcg/dL or two BLLs of 14.5 mcg/dL or
greater. The children are generally between the ages of one and three. For those cases, it
conducts a full assessment of the home. Each month Monterey County receives 10 to 20
reports of a child with a BLL of 4.5 mcg/dL or higher. A substantial number of cases of
lead poisoning in Monterey County have been attributed to imported foods.
Lead-based paint hazards in Oakland homes are “coming close to crisis mode.” In
Oakland, 80 to 90 percent of the housing is pre-1978, which accounts for about 174,000
units. Each year, Oakland’s Lead Safe Housing Program receives 16 to 20 referrals from
Alameda County’s CLPPP to assess homes where lead-poisoned children live.
In the City of San Diego, 60.5 percent of the housing was built before 1980. There
are about 300,000 pre-1978 housing units of which more than 62,000 are pre-1950. The
14
City of San Diego has a Lead Safety Healthy Homes Program that offers education,
outreach, risk assessments, and lead inspections. More than half of the 2,700 lead
inspections completed in the City of San Diego between 2005 and 2013 identified lead
hazards.
In San Francisco, 94 percent of the homes were built before 1978, which is more
than 317,000 housing units, and 68 percent were built before 1950, which is more than
235,000 housing units. About 22,000 housing units in San Francisco that are occupied by
low and moderate income families are believed to have lead-based paint hazards. San
Francisco’s CLPPP contacts parents when a child tests at 2 mcg/dL or higher. Only very
infrequently is the source of the child’s lead exposure anything other than lead paint. In
2010, when San Francisco tested 10,300 children under the age of six, 959 children tested
between 4.5 and 9.5 mcg/dL, and 35 tested higher. Since 2010, San Francisco has been
“seeing increasing numbers” of lead exposed children. Each year, San Francisco issues
about 200 notices to correct lead paint and soil lead hazards.
The number one source of lead poisoning in San Mateo County is lead paint. Lead
paint in pre-1978 housing is a public health problem in San Mateo County. This includes
intact lead paint because it will inevitably deteriorate. In San Mateo County, 80 to 90
percent of the housing is pre-1978, which is more than 200,000 housing units. More than
56,000 of those units are pre-1950.
“[L]ead paint is the number one environmental cause of poisoning of children in
Santa Clara County” and is a threat to public health there. In Santa Clara County, two-
thirds of the housing stock is pre-1978, which is more than 426,000 housing units. More
than 61,000 of those are pre-1950. Although in 2010 Santa Clara County could only afford
to test less than 20 percent of the more than 150,000 children under the age of six who lived
in the county, 339 of them had BLLs between 4.5 mcg/dL and 9.5 mcg/dL, and 71 had
BLLs over 9.5 mcg/dL. Most of the children with elevated BLLs lived in pre-1978 housing.
“[O]nce those children are determined to be lead poisoned, it is too late.”
15
Lead poisoning of children is a “very significant problem” in Solano County, and it
“causes substantial harm even at the lowest levels of exposure” such as 5 mcg/dL. “The
harm is very substantial, the harm is permanent. Children’s IQs are affected . . . they have
impairment of memory, difficulty with problem solving, inattentiveness . . . .” Only about
20 percent of the 32,000 children under age six in Solano County are tested for lead. This is
due to lack of access to medical care for poor children. In 2010, at least 100 children in
Solano County had BLLs over 4.5 mcg/dL. Between 2001 and 2012, the sole source of lead
exposure was lead paint for 55 percent of the children in Solano County with a BLL of 20
mcg/dL or higher or two BLLs of 15 mcg/dL. In many of the other cases, lead paint was a
contributing source. Between 75,000 and 80,000 homes in Solano County were built before
1978, which is about 51 percent of all of the homes. More than 18,000 of those units are
pre-1950. Solano County has no resources for code enforcement of lead paint hazards in
homes or for remediation.
Ventura County has almost 174,000 pre-1978 housing units. Almost 20,000 of those
are pre-1950. In 2010, Ventura County had 34 children with BLLs higher than 10 mcg/dL
and 271 children with BLLs over 5 mcg/dL. Ventura County’s CLPPP does not do any
environmental investigation as to children with BLLs between 5 and 15 mcg/dL. For those
children, Ventura’s CLPPP provides only educational material.
The CLPPPs lack the ability to engage in primary prevention, which seeks to prevent
lead exposure in the first place. Instead, the CLPPPs largely target children who have
already been exposed to lead. Abatement would be primary prevention. Although it is not
feasible to remove all lead from every home in the 10 jurisdictions, primary prevention
could be substantially furthered by lead inspections, risk assessments, education, and
remediation of identified lead hazards in homes in the 10 jurisdictions.
16
II. Defense Evidence At Trial
BLLs in children under the age of six nationally have been dropping since the 1970s,
going from a geometric mean of 15 mcg/dL in the late 1970s to 1 mcg/dL in 2009/2010.
The percentage of children under the age of six with BLLs exceeding 10 mcg/dL has
dropped over that period from more than 80 percent to less than one-half of one percent. A
similar drop has occurred for children under the age of six with BLLs over 5 mcg/dL. The
same is true in the western region, which includes California, where the geometric mean for
BLLs is about 25 to 30 percent lower than in other regions. In most of the 10 jurisdictions,
BLLs and the percentage of elevated BLLs also dropped from 2007 to 2012.
A defense expert testified that the lower BLLs reflected decreasing exposure of
children to lead. It was his opinion that leaded gasoline was largely responsible for both
soil lead and dust lead and that there was “very little impact of exposure to lead from paint
on community-wide blood lead levels.”
Another defense expert testified that the current understanding of childhood lead
poisoning was unknown before 1970. In his view, the amount of lead considered toxic and
awareness of “the pathway by which lead gets into the child’s body” had both “changed
radically over the years.” He asserted that in the first decade of the 20th century lead
poisoning was considered an “industrial disease of adults.” No tests were available to
measure a BLL. It was not until the 1930s that a BLL test became available. This defense
expert testified that, prior to 1920, there were no cases in the United States of a child
ingesting lead paint from a household surface. By 1940, interior use of lead paint was
dwindling. In 1951, Baltimore banned lead paint for interior use. In 1953, there was a
general call for lead paint not to be used for interiors.
This defense expert testified that in 1971, the medical community’s understanding
was that lead poisoning did not cause significant symptoms until the BLL exceeded 60
mcg/dL. In 1970, the United States Surgeon General determined that a BLL of 40 mcg/dL
should be considered “evidence suggestive of undue absorption of lead . . . .” It was not
17
recognized until 1974 that children could consume lead originating from lead paint from
household dust, rather than only from flakes and chips. In 1985, the CDC set an
“intervention level” for BLLs at 25 mcg/dL. In 1991, the CDC set the “level of concern”
for BLLs at 10 mcg/dL.
A defense epidemiologist testified that it was not clear even in 2003 whether BLLs
below 10 mcg/dL produced cognitive deficits. This expert testified that a subsequent study
authored by one of plaintiff’s experts showing such deficits was flawed. This expert had
not studied childhood lead exposure, but he testified that the evidence was inconclusive
whether there were cognitive effects of BLLs below 10 mcg/dL.
SWC presented a statistician who testified that SWC had contributed only 6,732 tons
of lead to California over the period from 1894 to 2009 out of a total of 217,784 tons of lead
consumed in California during that period, which was just “.1 percent” of the total lead. On
cross-examination, he conceded that his estimate was limited to lead manufactured by SWC
between 1910 and 1947, which was the only period when SWC manufactured lead. SWC
continued to make lead paint after 1947. His estimate was also based primarily on national
data about lead consumption to which he had applied a ratio based solely on population to
determine what he thought was California’s consumption.
Another defense expert testified that lead paint does not inevitably deteriorate. He
asserted that if lead paint is “maintained properly and re-coated as needed on a regular
maintenance cycle,” it will not deteriorate. His premise was that repainting would be
needed every three to five years. On cross-examination, he admitted that lead paint would
deteriorate over time, particularly on friction surfaces like windows. He also admitted that
repainting would require surface preparation, which would often mean sanding or scraping,
in order to provide a surface to which the new paint would adhere.
The defense’s abatement expert testified that the replacement of windows and doors
that have been painted with lead paint is “a very intrusive and disruptive process” that
involves “guys in moon suits, [and] respirators.” That process can disturb other hazardous
18
waste, such as asbestos, and lead to the discovery of mold issues. The remediation of floors
and soil would also be invasive, labor intensive, and time consuming. He also suggested
that the abatement plan’s cost estimates for remediation were unrealistically low. He
believed that remediation would often take a week or more and could increase the risk of
lead exposure for the residents of the home. He also testified that replacing windows does
not lower BLLs and that remediation can result in higher BLLs.
III. Procedural Background
In March 2011, plaintiff filed a fourth amended complaint (FAC) for public
22
nuisance. It named as defendants ConAgra, NL, SWC, Atlantic Richfield Company
23
(ARCO), E.I. Du Pont de Nemours and Company (DuPont), and 50 Doe defendants. The
FAC alleged that the presence of lead in homes was a public nuisance and that defendants
were “liable in public nuisance” because they had created or assisted in the creation of this
24
public nuisance. Plaintiff sought abatement, injunctive relief, costs, and attorney’s fees.
The parties stipulated that the FAC concerned only residential buildings and no public
buildings.
The court struck defendants’ jury demands, and the case was tried to the court in July
and August 2013. In March 2014, the court issued an amended statement of decision and an
amended judgment. The court’s amended statement of decision, which was over 100 pages
22
We need not discuss at length the long and complicated procedural history of this
case, which was originally filed in 2000. This case has already produced one published
decision by this court (Santa Clara I, supra, 137 Cal. App. 4th 292) and another by the
California Supreme Court (County of Santa Clara v. Superior Court (2010) 50 Cal. 4th 35
(Santa Clara II)). We will discuss these decisions only where they are relevant to the issues
before us in this appeal.
23
The trial court found that ARCO and DuPont were not liable, and they are not parties
to this appeal.
24
Defendants’ demurrer to the FAC was overruled. The court also denied summary
judgment motions by NL and SWC.
19
long, made numerous findings. The court expressly found that, “[s]ince antiquity, it has
been well known that lead is highly toxic and causes severe health consequences when
ingested” and that “[e]ven relatively low levels of lead exposure have severe health
consequences.” It found that lead paint is prevalent in the 10 jurisdictions, “inevitably
deteriorates,” and is the primary source of lead exposure for young children living in pre-
1978 housing in the 10 jurisdictions. As a result, children in these jurisdictions are
continuing to be exposed to lead from lead paint even though residential lead paint was
banned in 1978. The court expressly found that ConAgra, NL, and SWC each had “actual
knowledge of the hazards of lead paint,” “including childhood lead poisoning,” when they
promoted lead paint for interior residential use. The court’s judgment required defendants
to pay $1.15 billion into an abatement fund that would pay for lead inspections, education
about lead hazards, and remediation of particular lead hazards inside residences in the 10
25
jurisdictions. Defendants timely filed notices of appeal.
IV. Discussion
A. Substantial Evidence Issues
A public nuisance cause of action is established by proof that a defendant knowingly
created or assisted in the creation of a substantial and unreasonable interference with a
public right. (Santa Clara I, supra, 137 Cal.App.4th at pp. 305-306.)
Defendants contend that plaintiff failed to produce substantial evidence in support of
its public nuisance cause of action. They assert that substantial evidence does not support
the trial court’s findings that (1) they had actual knowledge of the public health hazard
posed by interior use of lead paint at the time they promoted and distributed it; (2) they
promoted lead paint for interior use; (3) their conduct caused the public nuisance to occur;
25
Plaintiff also appealed, but it later dismissed its appeal.
20
and (4) the nuisance is abatable, lead paint poses an imminent danger, and abatement will
lower BLLs.
1. Standard of Review
Defendants contend that their claims that substantial evidence does not support the
trial court’s judgment raise questions of law that we must review de novo. They cite Smith
v. Selma Community Hosp. (2008) 164 Cal. App. 4th 1478 (Smith) as support for this
contention. Smith is inapposite. In Smith, the Court of Appeal was reviewing a governing
board’s decision reviewing a judicial review committee’s decision. The board, which was
exercising substantial evidence review, concluded that the committee’s decision was not
supported by substantial evidence. Since the Court of Appeal was reviewing the board’s
decision that substantial evidence did not support the committee’s decision, the Court of
Appeal necessarily exercised independent review. (Smith, at pp. 1515-1516.) As we are not
reviewing another reviewing body’s decision as to whether a third body’s decision was
supported by substantial evidence, we do not exercise independent review. Instead, we
exercise ordinary deferential substantial evidence review.
“ ‘When a finding of fact is attacked on the ground that there is not any substantial
evidence to sustain it, the power of an appellate court begins and ends with the
determination as to whether there is any substantial evidence contradicted or uncontradicted
which will support the finding of fact.’ ” (Foreman & Clark Corp. v. Fallon (1971) 3 Cal. 3d
875, 881.) “ ‘[W]e have no power to judge of the effect or value of the evidence, to weigh
the evidence, to consider the credibility of the witnesses, or to resolve conflicts in the
evidence or in the reasonable inferences that may be drawn therefrom.’ ” (Leff v. Gunter
(1983) 33 Cal. 3d 508, 518.) Our role is limited to determining whether the evidence before
the trier of fact supports its findings. (Reddy v. Gonzalez (1992) 8 Cal. App. 4th 118, 123.)
Defendants claim that we may not presume implied findings in plaintiff’s favor
because there were “key ambiguities” in the trial court’s statement of decision that they
brought to the court’s attention but the court did not resolve.
21
“When a statement of decision does not resolve a controverted issue, or if the
statement is ambiguous and the record shows that the omission or ambiguity was brought to
the attention of the trial court . . . , it shall not be inferred on appeal . . . that the trial court
decided in favor of the prevailing party as to those facts or on that issue.” (Code Civ. Proc.,
§ 634.) “To bring defects in a statement of decision to the trial court’s attention within the
meaning of section 634, objections to a statement of decision must be ‘specific.’ [Citation.]
The alleged omission or ambiguity must be identified with sufficient particularity to allow
the trial court to correct the defect. [Citation.] ‘By filing specific objections to the court’s
statement of decision a party pinpoints alleged deficiencies in the statement and allows the
court to focus on the facts or issues the party contends were not resolved or whose
resolution is ambiguous.’ ” (Ermoian v. Desert Hospital (2007) 152 Cal. App. 4th 475, 498.)
“[A] trial court is not required to respond point by point to issues posed in a request for a
statement of decision. ‘ “The court’s statement of decision is sufficient if it fairly discloses
the court’s determination as to the ultimate facts and material issues in the case.”
[Citations.]’ ” (Id. at p. 500.)
After trial, each defendant submitted a proposed statement of decision, and plaintiff
submitted proposed findings of fact and law and a proposed order. In December 2013, the
court issued a proposed statement of decision. Plaintiff and defendants filed objections to
the proposed statement of decision. The court subsequently filed an amended statement of
26
decision and an amended judgment.
Defendants’ appellate briefs identify six “key ambiguities” that they assert they
brought to the court’s attention but the court failed to address in its statement of decision.
26
In January 2014, the court issued a statement of decision. Plaintiff submitted a
proposed judgment, and defendants objected to the proposed judgment. The court entered
judgment followed by an amended judgment. Defendants moved to vacate the judgment
and for a new trial. The court denied the motions for new trial and to vacate the judgment.
Plaintiff moved to modify the statement of decision and the judgment, and the court filed an
amended statement of decision and a second amended judgment.
22
The alleged “ambiguities” they identify are: (1) “Whether the court found any part of
defendants’ recitation of the historical knowledge of lead hazards to be incorrect;” (2)
“What level of lead exposure the court referred to as being ‘lead poisoning’ ”; (3) “What
facts about lead’s hazards the court found that defendants ‘actually knew’ ”; (4) “Which of
defendants’ promotions for interior paint the court found to be a basis for liability”; (5) “On
what basis the court included housing built after 1950”; and (6) “what public rights.”
“[I]t is settled that the trial court need not, in a statement to decision, ‘address all the
legal and factual issues raised by the parties.’ [Citation.] It ‘is required only to set out
ultimate findings rather than evidentiary ones.’ [Citation.] ‘ “[U]ltimate fact[]” ’ is a
slippery term, but in general it refers to a core fact, such as an element of a claim or defense,
without which the claim or defense must fail. [Citation.] It is distinguished conceptually
from ‘evidentiary facts’ and ‘conclusions of law.’ ” (Yield Dynamics, Inc. v. TEA Systems
Corp. (2007) 154 Cal. App. 4th 547, 559.)
Only one of defendants’ six alleged “ambiguities” arguably pertains to a “core fact”
rather than an evidentiary fact. SWC’s objections to the court’s proposed statement of
decision asked the court to “define ‘harmful’ ” with respect to defendants’ knowledge of
lead’s harmful nature. SWC argued that this was important because the state of knowledge
at the time defendants promoted lead paint did not include knowledge of the risks of low-
level exposure to deteriorating lead paint. ConAgra adopted SWC’s objections and also
asked the court to “specify what hazard it finds that Fuller knew when it promoted lead
paint for residential interior use, and when Fuller knew exposure to lead at even minute
levels was harmful.” ConAgra requested that the court specify “what ‘harm’ each
defendant ‘knew.’ ” NL objected to the court’s proposed knowledge findings and asked that
the court “specifically identify the knowledge that NL had at that time.” We address the
court’s treatment of the “harms” and “hazards” issue in the course of our analysis of
defendants’ challenge to the court’s knowledge findings. In all other respects, we reject
23
defendants’ claim that the court failed to resolve an ambiguity as to a “core fact” because
we conclude that the alleged ambiguities concerned evidentiary facts.
Before we embark on our substantial evidence review, we note that we cannot rely
solely on the expert testimony produced by plaintiff. Plaintiff’s expert witnesses testified to
conclusions that would appear on their face to establish both the actual knowledge and
promotion elements of plaintiff’s case. One of plaintiff’s experts testified: “These
Defendants manufactured white lead carbonate; these Defendants knew of the hazards of
lead during the time that they were manufacturing white lead carbonate; these Defendants
advertised, promoted, and sold their lead and/or lead [based] products while they had
knowledge of the hazards of lead; these Defendants advertised, promoted, and sold their
lead and/or lead containing products for use in and around homes within each of the 10
jurisdictions; suitable substitutes were available for white lead; these Defendants, through
their trade association, downplayed the hazards of lead; and these Defendants, through their
trade associations, fought the imposition of regulations.” And plaintiff’s experts testified to
even more specific conclusions: “Sherwin-Williams had actual knowledge about the
hazards of lead as early as 1900.”
If we could accept plaintiff’s expert witnesses’ testimony at face value, this
testimony would itself support the trial court’s findings. However, we may not do so.
“ ‘The chief value of an expert’s testimony in this field, as in all other fields, rests upon the
material from which his opinion is fashioned and the reasoning by which he progresses
from his material to his conclusion; . . . it does not lie in his mere expression of
27
conclusion.’ ” (People v. Bassett (1968) 69 Cal. 2d 122, 141.) “Where an expert bases his
27
The material upon which the expert relies may provide substantial evidence to
support the expert’s conclusion. However, there are limitations on an expert’s testimony
about that material. “What an expert cannot do is relate as true case-specific facts asserted
in hearsay statements, unless they are independently proven by competent evidence or are
covered by a hearsay exception.” (People v. Sanchez (2016) 63 Cal. 4th 665, 686.) We will
consider defendants’ hearsay challenges in section IV(J)(1) of this opinion.
24
conclusion upon assumptions which are not supported by the record, upon matters which
are not reasonably relied upon [by] other experts, or upon factors which are speculative,
remote or conjectural, then his conclusion has no evidentiary value. [Citations.] In those
circumstances the expert’s opinion cannot rise to the dignity of substantial evidence.
[Citation.] When a trial court has accepted an expert’s ultimate conclusion without critical
consideration of his reasoning and it appears the conclusion was based upon improper or
unwarranted matters, then the judgment must be reversed for lack of substantial evidence.”
(Pacific Gas & Electric Co. v. Zuckerman (1987) 189 Cal. App. 3d 1113, 1135-1136.) “If
[the expert’s] opinion is not based upon facts otherwise proved, or assumes facts contrary to
the only proof, it cannot rise to the dignity of substantial evidence.” (Estate of Powers
(1947) 81 Cal. App. 2d 480, 485-486.)
Consequently, a conclusion expressed by an expert cannot provide by itself
substantial evidence to support a finding unless the basis for the expert’s conclusion is itself
supported by substantial evidence. Our substantial evidence review must include a critical
examination of the material upon which the experts based their conclusions in order to
determine whether that material provides substantial support for those conclusions.
2. Actual Knowledge
Defendants claim that the trial court did not find actual knowledge, but only
constructive knowledge, and that its knowledge findings are not supported by substantial
evidence.
Constructive knowledge would not be sufficient to support plaintiff’s public nuisance
cause of action. The standard set by this court in Santa Clara I is actual knowledge, not
constructive knowledge. “[L]iability is premised on defendants’ promotion of lead paint for
interior use with knowledge of the hazard that such use would create. This conduct is
distinct from and far more egregious than simply producing a defective product or failing to
warn of a defective product . . . . [¶] A public nuisance cause of action is not premised on a
defect in a product or a failure to warn but on affirmative conduct that assisted in the
25
creation of a hazardous condition. Here, the alleged basis for defendants’ liability for the
public nuisance created by lead paint is their affirmative promotion of lead paint for interior
use, not their mere manufacture and distribution of lead paint or their failure to warn of its
hazards.” (Santa Clara I, supra, 137 Cal. App. 4th 292, 309-310, boldface & italics added.)
By tethering the public nuisance cause of action to affirmative promotion for a use
defendants knew to be hazardous, this court necessarily set forth an actual knowledge
standard. If the standard had been only constructive knowledge, the affirmative promotion
of a product for a particular use that was hazardous would not have been “far more
egregious” than simply failing to warn of a defective product.
We reject defendants’ claim that the trial court did not find “actual knowledge.” The
trial court’s statement of decision expressly found that all three defendants had “actual
knowledge of the hazards of lead paint—including childhood lead poisoning” when they
produced, marketed, sold, and promoted lead paint for residential use. It found: “ConAgra
had actual knowledge of the hazards of lead paint—including childhood lead poisoning—
for the duration of its production, marketing, and sale of lead pigments and paint for home
use”; “NL had actual knowledge of the hazards of lead paint, including childhood lead
poisoning”; “SW[C] had actual knowledge of the hazards of lead paint—including
childhood lead poisoning—for the duration of its production, marketing, and sale of lead
pigments and lead paint for home use.”
While the standard we established in Santa Clara I is actual knowledge, our
substantial evidence review remains deferential, and we must accept any reasonable
inferences that the trial court drew from the evidence before it. The fact that the trial court
was required to find actual knowledge does not mean that the court could not rely
exclusively on circumstantial evidence to support such a finding. The only limit on the trial
court’s reliance on inferences from circumstantial evidence to establish actual knowledge is
that those inferences may not be speculative or conjectural. “ ‘ “Actual knowledge can be
inferred from the circumstances only if, in the light of the evidence, such inference is not
26
based on speculation or conjecture. Only where the circumstances are such that the
defendant ‘must have known’ and not ‘should have known’ will an inference of actual
knowledge be permitted.” [Citation.]’ ” (Romero v. Superior Court (2001) 89 Cal. App. 4th
1068, 1082.) This distinction between what a defendant must have known and what a
defendant should have known is crucial. Proof of actual knowledge focuses on what
information a defendant must have been aware of, while proof of constructive knowledge
rests on a defendant’s duty to discover information.
We reject defendants’ claim that the court left undefined the nature of the “hazard” or
“harm” that defendants had knowledge of when they promoted lead paint for interior
residential use. The court expressly found that defendants “learned about the harms of lead
exposure through association-sponsored conferences.” It expressly found that defendants
knew in the 1930s that “the dangers of lead paint to children were not limited to their toys,
equipment, and furniture.” The court expressly found that defendants knew both that “high
level exposure to lead—and, in particular, lead paint—was fatal” and that “lower level lead
exposure harmed children.” The court also found that, by the 1920s, defendants knew that
“lead paint used on the interiors of homes would deteriorate, and that lead dust resulting
from this deterioration would poison children and cause serious injury.”
The trial court’s express findings made clear that the “harms” and “hazards” of
which defendants had actual knowledge included that (1) “lower level lead exposure
harmed children,” (2) “lead paint used on the interiors of homes would deteriorate,” and (3)
“lead dust resulting from this deterioration would poison children and cause serious injury.”
Because the trial court made the express findings that defendants sought in their objections
to the court’s proposed statement of decision, we are not precluded from drawing inferences
in support of the trial court’s decision. In any case, the court’s express findings fully suffice
to support its decision.
Here, the trial court properly focused on evidence of information that defendants
must have been aware of under the circumstances. This evidence was sufficient to support a
27
reasonable inference that each defendant must have known by the early 20th century that
interior residential lead paint posed a serious risk of harm to children.
First, evidence before the trial court established that, by 1914, it was well known in
the paint manufacturing industry that deteriorated lead paint on residential interiors,
particularly doors and windowsills, released “small particles” of lead into the air, which
were “very dangerous” to and could be ingested by humans and “poison” them.
In May 1910, the United States House of Representatives’ Committee on Interstate
and Foreign Commerce held a hearing on a bill aimed at preventing lead poisoning. The
bill would have required products containing white lead to “be labeled conspicuously and
securely with a skull and crossbones and the words: ‘White lead: poison.’ ” Congressman
Richard Bartholdt, who was the sponsor of the proposal, explained to the committee that
“the painters of the United States,” who had originally opposed the proposal, had
“practically all come around now” to supporting regulation of white lead. Bartholdt pointed
out that France had already “entirely prohibited the use of white lead because of its injurious
character” and that “all countries of Europe” had already enacted legislation like his
proposal.
Bartholdt explained: “We know very little of the injurious effect of these atoms of
white lead that are filling the air now; they come loose from doors, from window sills, from
everywhere, we inhale them and consequently disease is caused which physicians do not
understand and can not say what it really is, but it is, in many cases, simply a case of lead
poisoning.” One of the proponents of the bill told the committee that “the most eminent
scientists and doctors of Great Britain” had “found that the small particles that result from
chalking, especially from internal painting and external painting as well, when taken by
inhalation into the lungs, are absorbed and become a poison to the system.” He also stated
that an “eminent scientist” in London had said that occupying a room that had been painted
with white lead was “dangerous.”
28
Eugene Philbin attended the hearing as “counsel for, I think, practically all of the
paint manufacturers of this country—the leading ones,” to state their opposition to the
proposal. Philbin said that he represented not only the “Paint Manufacturers’ Association”
but also the “National Paint, Oil, and Varnish Association.” Philbin objected to the “poison
provision” on the ground that it was “entirely unnecessary” and would “create a fear on the
part of the consumer.” The bill failed.
A few years later, in 1914, Gardner, the director of the Paint Manufacturers
Association’s Educational Bureau, published a speech that he had given to the International
Association of Master House Painters and Decorators of the United States and Canada at
that association’s annual convention in February 1914. In this speech, Gardner
acknowledged that “the presence of [white lead] dust in the atmosphere of a room is very
dangerous to the health of the inmates.” He observed that “[l]ead poisoning may occur
through inhalation of [lead] dust . . . .” Gardner suggested that “white lead flatted with
28
turpentine” was to blame for the disintegration of white lead paint into white lead dust.
However, Gardner expressed the belief that “the use of flatted white lead has been largely
abandoned for wall and ceiling decoration, and its place has been taken by the more sanitary
leadless Flat Wall Paints.”
Notwithstanding Gardner’s belief, interior residential use of lead paint continued
throughout the first half of the 20th century despite widespread knowledge in the paint
industry of the toxic properties of white lead. NL, SWC, and Fuller were all leaders in the
lead paint industry. SWC proclaimed itself in 1901 to be “the largest manufacturer of
Prepared Paint in the world.” In 1934, SWC called itself the “World’s Largest Paint
Producer” and identified itself as “one of the country’s largest producers of White Lead.”
28
In 1914, it had long been a common practice to mix lead paint with turpentine. That
practice did not end. Fuller’s 1931 White Lead Paint brochure instructed users to mix the
lead paint with turpentine. NL’s 1950 Handbook on Painting recommended mixing lead
paint with turpentine when painting interior woodwork.
29
NL took pride in its position as a leader in the white lead industry since 1891. In 1912, NL
made more than 20 different brands of Dutch Boy White Lead for painting, the brand that it
had adopted in 1907. By the late 19th century, Fuller was the leading seller of white lead on
the West Coast and was “one of the strongest concerns dealing in paints, oils and glass in
the United States.”
NL, SWC, and Fuller, as leaders in the lead paint industry were well aware in the
early part of the 20th century that lead dust was poisonous. They were also aware that lead
paint “powders and chalks” “soon after it is applied” and routinely produces lead dust after
a couple of years. Both the May 1910 congressional hearing and the published 1914 Paint
Manufacturing Association speech plainly discussed the dangers posed by interior
residential use of lead paint. Because defendants were leaders in the paint industry at that
time, they must have been aware of hazards related to their products that were well known
in the paint industry. It is neither speculative nor conjectural to draw a reasonable inference
that leaders in the paint industry were aware of a serious hazard caused by their product
when this hazard was generally known in their industry. Indeed, it would be unreasonable
to infer that, notwithstanding general knowledge of the hazard of their products within the
industry, defendants somehow managed to avoid learning of this hazard.
Second, the reasonable inference arising from the 1910 and 1914 evidence of what
was generally known in the paint industry was further supported by evidence that Fuller,
NL, and SWC were each the recipient of confirmatory information about this hazard from
the LIA in the 1930s. Each of the defendants was a member of the LIA in the 1930s when
the LIA promulgated information to its members about the “frequent occurrence” of
children being poisoned by lead paint from “toys, cradles, and woodwork,” which included
the fact that even a small amount of lead could kill a child. The LIA information given to
its members (including all three defendants) referenced a national newspaper article that had
stated that “[c]hildren are very susceptible to lead” and that the “most common sources of
lead poisoning in children are paint on various objects within reach of a child and lead
30
pipes . . . .” Defendants, as the recipients of this information from the LIA, must have been
aware at that time, in the early 1930s, of the hazard to children created by the interior
residential use of lead paint. The fact that this information confirmed the prior information
of which they also must have been aware served to solidify the foundation for the trial
court’s actual knowledge findings.
All of this evidence provided substantial support for the trial court’s actual
knowledge findings as to the three defendants under our deferential standard of review.
“The fact that it is possible to draw some inference other than that drawn by the trier of fact
is of no consequence. . . . We must therefore view the evidence in the light most favorable
to the prevailing party, giving it the benefit of every reasonable inference . . . .” (Jessup
Farms v. Baldwin (1983) 33 Cal. 3d 639, 660.)
Here, the evidence, while circumstantial, was sufficient to support reasonable
inferences that defendants must have known in the early 20th century that interior residential
lead paint posed a serious risk of harm to children. Since these reasonable inferences
support the trier of fact’s express findings that NL, SWC, and Fuller harbored the requisite
actual knowledge, our deferential standard of review precludes us from drawing contrary
inferences, and we must uphold the trial court’s actual knowledge findings.
ConAgra claims that there was no evidence that its predecessor, Fuller, knew in the
early 20th century that the use of lead paint in residential interiors would pose a public
health hazard. It maintains that Fuller either did not know that children were consuming
lead paint or knew of only “isolated cases” of such behavior that did not amount to a public
health hazard. ConAgra also contends that Fuller could not have been aware of the risk of
lower BLLs, since no test for BLLs existed at the time, and could not have known of the
specific pathways by which children consume lead dust, which were not proved until much
later.
By 1914, as a major producer of lead paint since the previous century, Fuller was
well aware of the public health hazard posed to children by interior residential lead paint.
31
The 1910 congressional hearing and the 1914 published speech provide very strong
circumstantial evidence of Fuller’s actual knowledge. Fuller could not have failed to learn
from the hearing and the article that deteriorated interior residential lead paint posed a “very
dangerous” risk to the “health” of the inhabitants of those residences. Of course, this
knowledge was reinforced by information that the LIA distributed to its members, including
Fuller, in the 1930s discussing how it was a “frequent occurrence” that children were
poisoned by lead paint from “toys, cradles, and woodwork” and noting that even a small
29
amount of lead could kill a child.
In light of these facts, there is no merit to ConAgra’s claims that Fuller did not know
children were consuming lead paint, that Fuller believed that such events were infrequent,
and that Fuller could not have known that a small amount of lead could harm a child. Since
Fuller was aware that deteriorating interior residential lead paint exposed the occupants of
the residence to “very dangerous” lead dust, knowledge of the specific pathway by which
children consume lead dust was not essential for Fuller to be aware that lead paint on
residential interiors posed a risk of serious harm to children.
ConAgra also claims that the evidence was insufficient to show Fuller’s knowledge
because the trial court erroneously permitted plaintiff’s experts to opine about Fuller’s
29
ConAgra contends that Fuller could not acquire knowledge through the LIA because
the LIA was not Fuller’s agent. It was Fuller’s own participation in the LIA that led it to
acquire the requisite knowledge, not by means of any agency relationship between Fuller
and the LIA.
ConAgra argues that the trial court could not reasonably rely on Fuller’s knowledge
through the LIA because the court found that ARCO did not have knowledge through the
LIA. The trial court’s finding as to ARCO did not expressly relate to the LIA. The court
found only that ARCO and its predecessors did not have knowledge of “adverse health
effects from exposure to residential lead paint during the relevant time period.” Indeed, the
court’s rejection of liability for ARCO was based primarily on a lack of evidence
connecting ARCO’s predecessors to the 10 jurisdictions. ConAgra makes no attempt to
demonstrate that the evidence of Fuller’s participation in the LIA was identical to that of
ARCO’s predecessors.
32
knowledge. Since the material upon which the experts’ opinions were based provides
substantial support for those opinions, the court did not err in admitting and relying on those
opinions. We assess ConAgra’s claim that some of the documents relied on by the experts
were inadmissible hearsay in section IV(J)(1) of this opinion.
ConAgra asserts that Fuller was aware of the dangers of lead dust solely in the
occupational context. As we have already explained, the evidence supports the trial court’s
finding that Fuller was aware of the risks posed by lead paint on residential interiors. We
reject ConAgra’s challenge to the sufficiency of the evidence to support the trial court’s
express finding that Fuller was aware of the public health hazard to children posed by lead
paint in residential interiors.
NL claims that the evidence was insufficient to support the trial court’s actual
knowledge finding because plaintiff was required to prove that NL had “knowledge in the
early 1900s that children could get dangerous levels of blood lead from intact lead paint
anywhere in any home . . . via invisible dust.” NL’s claim is misleading. Our review of the
trial court’s actual knowledge finding requires us to examine the record to determine
whether there is substantial evidence that NL knew in the early 1900s that interior
residential lead paint posed a significant risk of harm to children. We need not find
evidence that NL understood precisely how children could be harmed by interior residential
lead paint so long as there is substantial evidence that NL knew that interior residential lead
paint posed a significant risk of harm to children.
Our examination of the record reveals that it contains substantial evidence that NL
had the requisite actual knowledge by 1914. The 1910 congressional hearing and the 1914
published speech were sufficient to make a leader in the lead paint industry aware of the
risk of serious harm that interior residential lead paint posed to children. NL claims that
there was not substantial evidence that it was aware in the early 20th century of the risks to
children of “low-level” lead exposure. Since the information of which NL was aware
suggested that even adults were at serious risk from interior residential lead paint, NL could
33
not have failed to understand that the risk to children would be at least as great. NL, like
Fuller, subsequently gained further knowledge, from its participation in the LIA, that
children who ingested even very small amounts of lead could suffer serious harm. The LIA
informed its members in the 1930s that even a small amount of lead could kill a child. And,
at a 1937 LIA conference, a doctor informed LIA members that “[t]o get rid of the lead in
children is almost impossible.”
We find substantial evidence in the record to support the trial court’s finding that NL
had actual knowledge of the risk of harm to children from interior residential lead paint.
SWC claims that the trial court’s finding that it had actual knowledge of the risk of
harm to children from interior residential use of lead paint was based on “hindsight”
because SWC could not have known “of today’s alleged risk to children from ultra-low
BLLs that can come from ingesting lead in household dust.” SWC’s premise is flawed.
The trial court’s actual knowledge finding may be upheld if there is substantial evidence
that SWC was aware at the relevant time that interior residential lead paint posed a
significant risk of harm to children. It was not necessary for there to be proof that SWC was
aware of the precise pathway by which children were exposed to lead and or that those
harms could occur even at low BLL levels, particularly since there was no BLL test in
existence at the relevant time.
The evidence presented at trial established that SWC knew no later than 1900 that
lead paint was prone to deterioration and that it posed a serious risk of harm to those
exposed to it. SWC began making lead paint in 1880. By 1900, it knew that, because lead
was a “deadly cumulative poison,” and lead paint tended to deteriorate, lead paint could be
seriously dangerous.
SWC claims that its knowledge in 1900 of risks from deteriorating lead paint was
limited to exterior use of lead paint, but the trial court could have reasonably concluded that
SWC knew that the deterioration of interior residential lead paint would pose an even more
serious risk that would be heightened with respect to young children who were necessarily
34
confined to the interiors of their homes. We conclude that substantial evidence supports the
trial court’s finding that SWC had actual knowledge of the serious risk of harm to children
from interior residential lead paint.
3. Creating or Assisting in Creating a Public Nuisance: Promotion
Defendants challenge the trial court’s findings that they affirmatively promoted lead
paint for interior residential use.
“ ‘[T]he critical question is whether the defendant created or assisted in the creation
of the nuisance.’ ” (Santa Clara I, supra, 137 Cal.App.4th at pp. 305-306.) “A public
nuisance cause of action is not premised on a defect in a product or a failure to warn but on
affirmative conduct that assisted in the creation of a hazardous condition. Here, the alleged
basis for defendants’ liability for the public nuisance created by lead paint is their
affirmative promotion of lead paint for interior use, not their mere manufacture and
distribution of lead paint or their failure to warn of its hazards.” (Santa Clara I, at pp. 309-
310, italics added.)
Defendants claim that the court could not base its promotion findings on their
30
advertising without violating the First Amendment. They also contend that reliance on the
30
In a reply brief, defendants claim for the first time that we must apply a heightened
standard of substantial evidence review to the court’s promotion finding because “First
Amendment rights are at stake.” Appellate courts ordinarily do not consider new issues
raised for the first time in an appellant’s reply brief because such a tactic deprives the
respondent of the opportunity to respond to the contention. (Reichardt v. Hoffman (1997)
52 Cal. App. 4th 754, 764-765 (Reichardt).) It is only upon a showing of good cause for
failing to raise the issue earlier that an appellate court will address an issue that is initially
raised in the reply brief. (Ibid.) We decline to address this issue as defendants have made
no showing of good cause, and plaintiff has had no opportunity to address this issue.
Furthermore, the only case they cite in support of this claim is one in which the Court
of Appeal acknowledged that a heightened standard of review is appropriate where the issue
is whether a communication is unlawful. (San Francisco Unified School Dist. ex. rel.
Contreras v. First Student, Inc. (2013) 213 Cal. App. 4th 1212, 1228.) In that case, the trial
court had issued an injunction barring certain communications. (Id. at p. 1228.) Here, the
only plausible First Amendment issue is defendants’ contention that their “promotion” of
35
promotional advertising activities of the LIA and the NPVLA would violate their First
31
Amendment right to free association. In addition, the three defendants individually
challenge the sufficiency of the evidence to support the court’s findings that each of them
affirmatively promoted lead paint for interior residential use.
Defendants’ reliance on the First Amendment is misplaced. While “the creation and
dissemination of information are speech within the meaning of the First Amendment”
(Sorrell v. IMS Health Inc. (2011) 564 U.S. 552, 570), “[t]he Constitution . . . accords a
lesser protection to commercial speech than to other constitutionally guaranteed
expression.” (Central Hudson Gas & Elec. Corp. v. Public Service Commission of New
York (1980) 447 U.S. 557, 562-563 (Central Hudson).) “[T]here can be no constitutional
objection to the suppression of commercial messages that do not accurately inform the
public about lawful activity. The government may ban forms of communication more likely
to deceive the public than to inform it, [citations], or commercial speech related to illegal
32
activity, [citation].” (Central Hudson, at pp. 563-564.)
“[T]he State does not lose its power to regulate commercial activity deemed harmful
to the public whenever speech is a component of that activity.” (Ohralik v. Ohio State Bar
lead paint for interior residential use was protected by the First Amendment. The trial
court’s order did not bar any communications. In any case, since we conclude as a matter of
law that their advertisements were not protected by the First Amendment, application of a
heightened standard of review would not assist defendants.
31
Defendants objected in the trial court on First Amendment grounds to evidence that
they had used commercial speech to promote lead paint for interior residential use. They
also objected on First Amendment freedom of association grounds to evidence based on
their membership in the LIA and the NPVLA. The court overruled both objections.
32
“If the communication is neither misleading nor related to unlawful activity, the
government’s power is more circumscribed. . . . Compliance with this requirement may be
measured by two criteria. First, the restriction must directly advance the state interest
involved; the regulation may not be sustained if it provides only ineffective or remote
support for the government’s purpose. Second, if the governmental interest could be served
as well by a more limited restriction on commercial speech, the excessive restrictions
cannot survive.” (Central Hudson, supra, 447 U.S. at p. 564.)
36
Ass’n (1978) 436 U.S. 447, 456.) The California Supreme Court has already acknowledged
that holding defendants liable in this case for the public nuisance created by their promotion
of lead paint for interior residential use will not “prevent defendants from exercising any
First Amendment right or any other liberty interest. Although liability may be based in part
on prior commercial speech, the remedy will not involve enjoining current or future
speech.” (Santa Clara II, supra, 50 Cal.4th at p. 55; see also People v. Superior Court
(Olson) (1979) 96 Cal. App. 3d 181, 195 [imposing civil “penalties for the negligent
dissemination of untruthful or misleading advertising does not offend the First
Amendment.”].)
Defendants’ lead paint promotional advertising and participation in trade-association-
sponsored lead paint promotional advertising were not entitled to any First Amendment
protections. Promotion of lead paint for interior residential use necessarily implied that lead
paint was safe for such use. If defendants promoted lead paint for interior residential use
while knowing that such use would create a public health hazard, then their promotions
were misleading and not entitled to any First Amendment protection. If, on the other hand,
defendants did not promote lead paint for interior residential use, or did not know at the
time they did so that such use would create a public health hazard, those promotions would
not establish that defendants created or assisted in the creation of a public nuisance. As any
wrongful promotions would be misleading and not entitled to First Amendment protection,
we find no First Amendment bar to the trial court’s reliance on defendants’ promotions.
Defendants also make individual challenges to the sufficiency of the evidence to
support the trial court’s findings that each of them affirmatively promoted lead paint for
interior residential use while knowing of the public health hazard that such use would
create. Our review of these contentions requires us to examine, among other things, the
hundreds of advertisements upon which plaintiff relied to show that defendants had
promoted lead paint for interior residential use. We must note at the outset that, for a
37
number of reasons, a large number of these advertisements did not promote interior
residential use of lead paint.
Some of these advertisements expressly promoted only exterior use of lead paint.
Others promoted a particular brand without specifying any particular paint. Numerous
advertisements promoted lead paint as “house paint” without expressly promoting it for
interior use.
Another group of these advertisements promoted interior use of a particular paint
without identifying that paint as a lead paint, and without other evidence that the particular
paint promoted for interior use in these advertisements was a lead paint. Stipulations
between plaintiff and NL and between plaintiff and SWC established that certain paints
promoted by NL and SWC were lead paints, but there was no such stipulation with regard to
Fuller or as to paint companies acquired by NL or SWC. And many of the advertisements
were not specific enough to identify the promoted paint as one of those identified in the
stipulations.
Many of the advertisements were not placed by NL, SWC, or Fuller, but instead by a
paint store or a hardware retailer. While there was evidence that SWC financed half of the
cost of its authorized dealers’ local advertisements and that NL “consistently supported
dealers’ local advertising,” plaintiff’s expert acknowledged that there was no such evidence
as to Fuller. As there was no evidence that Fuller had any involvement in the placement of
advertisements by hardware and paint stores, advertisements by those stores cannot be
attributed to Fuller and cannot show that Fuller promoted lead paint for interior residential
33
use.
33
For instance, a 1916 Santa Clara County “Farmers Union” advertisement promoted
for interior use a lead paint made by a company acquired by Fuller. A 1934 advertisement
placed by a Monterey hardware store promoted Fuller’s lead paint “for use on interior and
exterior surfaces.” A 1940 Solano County hardware store advertisement promoted Fuller’s
lead paint for “interior surfaces.” A 1942 Monterey County paint store advertisement
38
Plaintiff also relied on the LIA’s two promotional campaigns. The member
companies that participated in these campaigns funded them. Fuller was a member of the
LIA from 1928 to 1958. SWC was a member of the LIA from 1928 to 1947. NL was an
LIA member from 1928 to 1978. NL and Fuller participated in both of the LIA’s
campaigns; SWC participated in only the Forest Products campaign and contributed funds
to that campaign only from 1937 to 1941.
Because the LIA’s promotional campaigns affected multiple defendants, we detail
those campaigns at the outset. The Forest Products campaign, which ran from 1934 to
1941, was aimed at having manufacturers of lumber, window frames, and doors endorse
lead paint. The purpose of the Forest Products campaign, which was active in California,
was to promote the use of lead paint on lumber and in residences. In 1934, the LIA
persuaded lumber manufacturers associations on the West Coast to recommend the use of
lead paint on lumber by “enclos[ing] ‘Painting Instructions’ folders with all bundles of
34
siding” in 1935. In 1938, the LIA persuaded the Western Pine Association to paint its
model home at the San Francisco World’s Fair “inside and out with white lead and publicize
this specification.” Also in 1938, the LIA persuaded “sash [(window frame)] and door
manufacturers” to put labels on 20,000,000 sashes and doors “featuring the use of white
lead and high-grade prepared paint.” In 1939, the LIA board was apprised that, due to the
Forest Products campaign, “ ‘[a]ll of the principal producers of soft and hard lumber in the
United States such as redwood, cypresses, cedar, pine and others, now specify white lead or
high grade prepared paint which contain white lead.’ ”
promoted Fuller’s lead paint for interior use. A 1949 Vallejo paint store advertisement
promoted Fuller’s lead paint as an “all-purpose house paint.”
34
Plaintiff’s expert testified that these painting instructions included “methods for how
to use paint on sidings and on floors and on objects in homes . . . .” (Italics added.) The
painting instructions were not in evidence, and the expert relied solely on an LIA document
that referred only to “siding.” The expert also asserted that these instructions pertained to
“siding interiors,” but he did not explain why the word “siding” would have been used in
the 1930s in reference to interior paneling.
39
The LIA’s White Lead Promotion campaign, which ran in two phases, phase one
from 1939 to 1944 and phase two from 1950 through 1952, was intended to increase the
35
market for white lead. This campaign produced hundreds of advertisements promoting
white lead. LIA advertisements in 1939 and 1940 expressly promoted lead paint for interior
residential use. A 1939 LIA advertisement in the Hardware Retailer reproduced a letter to
the LIA from the Douglas Fir Plywood Association touting lead paint for interior walls and
ceilings in addition to “exterior siding.” In 1940, LIA advertisements in “National Painters
Magazine” and “American Painter and Decorator” promoted interior residential use of lead
paint and proclaimed such things as “white lead lends itself ideally to any paint styling
desired by owner or architect, inside or out.” 1940 LIA advertisements in American Paint
and Oil Dealer, American Painter and Decorator, National Painters Magazine, The Painter
and Decorator, American Builder, Hardware Retailer, and Hardware Age all promoted lead
paint for interior residential use.
By 1941, the LIA’s campaigns had created a great increase in the sale of lead paint
compared to non-lead paint. During the war, lead paint sales declined, and they continued
to decline after the war. The LIA briefly revived the White Lead Promotion campaign in
the early 1950s, but it subsequently stopped specifically promoting white lead paint.
Although the LIA’s campaigns did not reverse the long-term trend of less use of lead
pigments, these campaigns did prolong the use of lead pigments that otherwise probably
36
would have ceased to be used. More white lead was used during the Depression (the late
1920s and 1930s) than had been used previously, and the LIA attributed this increase to its
campaigns.
35
Other LIA advertisements in 1939 and 1940 did not expressly promote lead paint for
interior use and mentioned only exterior use.
36
It was unclear whether white lead sales would have declined more quickly if there
had been no White Lead Promotion campaign.
40
With this background in mind, we proceed to review defendants’ individual
contentions.
a. ConAgra
ConAgra contends that there is not substantial evidence that Fuller promoted lead
paint for residential interiors with the requisite knowledge because (1) Fuller’s post-1929
advertisements did not tell consumers to use lead paint on residential interiors, (2) Fuller’s
post-1935 advertisements did not mention lead or were only for exterior paint, (3) Fuller did
not sell any lead paint for interiors after 1948, and (4) Fuller did not participate in the LIA’s
promotions.
Evidence at trial established that Fuller sold lead paint in the 10 jurisdictions from
1894 to 1961. Between 1894 and 1948, Fuller marketed two lead products: Pure Prepared
37
Paint and Pioneer White Lead in Oil. Fuller also marketed paints and other coatings that
did not contain lead. Fuller’s lead paints were sold at its own stores and by independent
dealers in all 10 jurisdictions between 1894 and 1961. Plaintiff’s experts testified that
Fuller promoted the use of white lead by distributing brochures for consumers and painters
that instructed them to use Fuller’s lead paints for residential interiors and exteriors. They
also asserted that Fuller’s advertisements in the 10 jurisdictions instructed consumers to use
Fuller’s white lead paints on their residences.
A large number of the advertisements for Fuller products in the record are not for
38
Fuller’s lead paint but for other Fuller paints or coatings. Another group of these
advertisements simply generally advertised Fuller paints with no specification of which
ones or without specifying for what purposes, or with specifications of the purposes for each
37
Fuller also owned the Phoenix and Nason paint companies and marketed Phoenix’s
lead paint.
38
The record contains hundreds of advertisements for Fuller products. Fuller
advertised its “Nitrokote,” “Fullerglo,” “Enamel,” and other specific paints, and there was
no evidence that these paints contained lead.
41
paint that did not suggest that Fuller’s lead paint be used for interiors. Plaintiff’s expert
testified: “In my expert opinion, they all are advertising Fuller Paints which contain lead.
And they are actually ads that are informing consumers to use Fuller products without any
acknowledgment they are containing lead. Some of them have lead in it, some don’t.”
Since plaintiff’s expert acknowledged that Fuller made both lead paint and non-lead paint,
the mere fact that Fuller advertised its products does not establish that it promoted its lead
paint for interior residential use. We disregard plaintiff’s expert’s testimony on this point
because it lacks any rational basis in the evidence.
Many advertisements in the record were for Fuller’s lead paint but did not expressly
suggest that it be used for interiors. Some of these advertisements described Fuller’s lead
paint as “house paint.” However, another group of Fuller advertisements explicitly
promoted Fuller’s lead paints for “all” residential purposes. For example, a 1927 Monterey
Fuller advertisement promoted Fuller’s lead paint “for all general purposes.” Fuller
advertisements in 1937 in the San Francisco Chronicle and the Los Angeles Times
described Fuller’s lead paint as “all purpose, ‘house’ paint.” While these advertisements
suggested that Fuller’s lead paint could be used for any purpose, including interior
residential use, the most important evidence of Fuller’s promotion of its lead paint for
interior residential use was Fuller’s 1931 brochure for its lead paint. This brochure’s
“Directions for Use” instructed consumers to use this lead paint for residential interiors.
Since Fuller’s advertisements frequently suggested that consumers obtain brochures from a
Fuller dealer, the brochure’s “Directions for Use” amounted to instructions to all of those
who purchased Fuller’s lead paint to use it for residential interiors. Fuller also participated
in both of the LIA’s promotional campaigns in the 1930s and 1940s, which promoted lead
paint for interior residential use.
This evidence rebuts ConAgra’s contentions. Fuller did promote its lead paint after
1929 and after 1935, both by instructing consumers to use its lead paint for interior
residential use and by participating in the LIA’s campaigns promoting lead paint for interior
42
residential use. It is immaterial whether Fuller’s advertisements mentioned the word “lead”
so long as the paint promoted in the advertisement was a lead paint, as it was. Fuller’s
claim that it ceased to produce and sell lead paint in 1948 is immaterial even if true. It was
not necessary to show that Fuller continued to assist in the creation of the public nuisance
throughout the entire period if its conduct constituted a substantial factor in causing the
public nuisance (an issue we address in section IV(A)(4) of this opinion). Fuller’s claim
that it did not participate in the LIA’s promotions was rebutted by substantial evidence at
trial.
We conclude that there is substantial evidence that Fuller itself promoted its lead
paint for interior residential use at least beginning in 1931 and that it continued to do so as
part of the LIA’s promotional campaigns in the 1930s and 1940s. Since the evidence
supports the trial court’s finding that Fuller knew of the danger that such use would create
for children at that time, there is substantial evidence that Fuller promoted lead paint for
interior residential use with the requisite knowledge.
b. NL
NL contends that its advertisements were not misleading because they merely
described how well lead paint would protect and beautify interior walls and woodwork. As
we have already explained, promotion of lead paint for interior residential use was
inherently misleading because it implicitly asserted that it was safe for such use when it was
not. NL also asserts that the court’s promotion finding cannot be upheld because there was
no evidence that NL promoted lead paint for interior residential use after 1950. As we have
noted above, the period during which a defendant assisted in the creation of a public
nuisance is relevant only as to causation; it does not rebut a showing of affirmative
promotion with the requisite knowledge.
Substantial evidence supports the trial court’s finding that NL affirmatively promoted
lead paint for interior residential use with the requisite knowledge. NL stipulated that it
manufactured, sold, and promoted lead paint for residential use in the 10 jurisdictions from
43
1900 to 1972 and that its “White Lead-in-Oil,” “Dutch Boy House Paint 104,” “Dutch Boy
House Paint 111,” and “Dutch Boy House Paint 116” contained white lead. No evidence
39
was produced at trial that any other NL paint products contained white lead.
Plaintiff’s expert testified that NL promoted its Dutch Boy lead paint for interior
residential use. NL produced “little illustrated books [in which] children were provided
with both a story and a coloring pallet of paint that basically depicted the ways in which
Dutch Boy white lead paint protected children from all sorts of onslaughts.” He testified
that NL “[s]pecifically promoted the use” of lead paint in “play rooms, . . . homes and on to
surfaces and even on their furniture.” Plaintiff’s expert also noted that NL’s advertisements
did not necessarily disclose whether NL’s lead paint contained lead and did not always
distinguish between the use of lead paint on interiors and its use on exteriors. As we will
explain, the material upon which plaintiff’s expert based his testimony provides substantial
support for his testimony.
NL’s advertisements from the early 20th century demonstrate that NL repeatedly
promoted its lead paint for interior residential use. A 1915 NL advertisement in the San
Francisco Chronicle did so. A 1924 NL advertisement in National Geographic Magazine
did so. A 1929 NL advertisement in the Los Angeles Times did so. 1929 NL
advertisements in the San Francisco Chronicle and the Oakland Tribune promoted lead
39
Many of the advertisements in the record were for Bass-Hueter products. NL
purchased Bass-Hueter Paint Company in 1916, and Bass-Hueter merged with NL in 1930.
No evidence was produced at trial that any specific Bass-Hueter paints contained white
lead. Although the record contains 1931 advertisements for Bass-Hueter paints that
promoted interior residential use, there is no evidence that those paints were lead paints. A
1933 Santa Clara County hardware store advertisement promoted Bass-Heuter Pure Lead
and Oil Paint, but it did not suggest that it be used for residential interiors. Although Bass-
Heuter advertisements in 1922 in Solano County and in 1925 in Santa Clara County
described Bass-Heuter paints as having “permanent pigments, a base consisting of a
combination of pure carbonate of lead and oxide of zinc, ground in refined linseed oil,”
there is no indication that these advertisements were admitted or could properly be admitted
for their truth. Accordingly, the Bass-Hueter advertisements do not establish that NL
promoted lead paint for interior residential use.
44
paint for “your stucco house or for any other surface.” (Italics added.) A 1938 San Diego
advertisement by a paint store promoted Dutch Boy, NL’s brand, as “All Purpose Lead.” A
1950 San Diego advertisement by a paint store promoted NL’s lead products for interior
residential use. And NL participated in both of the LIA’s promotional campaigns in the
1930s and 1940s promoting lead paint for interior residential use.
NL’s 1929 “paint book” for children showed a “Dutch Boy Painter” who tells the
children, “This famous Dutch Boy Lead of mine [¶] Can make this playroom fairly shine
[¶] Let’s start our painting right away [¶] You’ll find the work is only play.” The book
showed children stirring and painting with clearly labeled containers of Dutch Boy White
Lead paint and then playing in their newly painted playroom. At the end of the book, it
said: “For durable economical paint—inside or outside [¶] Paint with lead [¶] Dutch Boy
White-Lead.” Every page of the “paint book” instructed children to give their parents the
40
“coupon” in the middle of the book. NL’s paint book contained “paper chips of paint” for
children to use to color the pictures in the book. NL used this paint book as a promotion
“for many years.” This paint book obviously promoted lead paint for interior residential
use.
NL’s 1949 salesman’s manual instructed NL’s salesmen that NL’s lead paints could
“handle any painting job, exterior or interior” on any building. The manual told the
salesmen that NL’s “Lead Mixing Oil” was appropriate for “interior surfaces.”
NL’s 1950 “Handbook on Painting” encouraged the use of white lead paint on
interior surfaces: “On interiors white lead is desired for its unique richness and solid beauty
of finish. Also, the durability of white lead paint enables it to stand up under frequent
washing—a big money saver in such places as hospitals and hotels.” “The customary flat
paint for interior work is made by mixing white lead with either Lead Mixing Oil or flatting
40
In NL’s 1949 salesman’s manual, NL noted that the “paint book” was one of its
“most successful promotions” of its paint.
45
oil.” “Dutch Boy Lead Mixing Oil, when mixed with white lead in the proper proportions,
makes flat paint that can be used on exterior as well as interior surfaces.” “Furthermore,
white lead and Lead Mixing Oil has the sturdy wear and beauty of finish characteristic of all
white lead paint, whether exposed to weather or used inside. [¶] White lead and Lead
Mixing Oil can be used for all coats on plaster and wallboard.” NL’s instructions for use in
this handbook explicitly advocated the use of lead paint on interiors.
Substantial evidence supports the trial court’s finding that NL affirmatively promoted
lead paint for interior residential use with the requisite knowledge. NL extensively
promoted its lead paint for interior residential use from 1915 through 1950. Because NL
knew of the danger to children from lead paint on residential interiors no later than 1914,
substantial evidence supports the trial court’s finding that NL’s subsequent promotions of
lead paint for such use were done with the requisite knowledge.
c. SWC
SWC contends that plaintiff did not present evidence of any advertisement by SWC
promoting lead paint for interior residential use.
SWC stipulated that it began manufacturing lead paint in 1880 and began
manufacturing white lead carbonate pigment in 1910. SWC manufactured Old Dutch
Process (ODP) white lead in oil from 1910 to 1947. SWC manufactured “Inside Floor
Paint,” some colors of which contained white lead, between 1910 and 1913. SWC’s other
white lead paints were some of its SWP “house paint” colors until 1950, some of its
41
“Family Paint” colors in the 1940s, its “Porch and Deck” paint, and its “Concrete &
41
SWC and plaintiff stipulated that there was “no evidence” that SWC’s “Family
Paint,” a paint that was intended for and promoted for interior residential use, “ever
contained white lead sulfate” or “ever contained white lead carbonate pigment prior to
1941.” Interestingly, SWC’s 1926 training manual for its representatives stated that Family
Paint, which it stated “will give good service on inside work,” contained “White Lead
Sulfate” pigment. SWC and plaintiff also stipulated that they had discovered no post-1936
advertisements for SWC’s Family Paint.
46
42
Stucco” paint. SWC also sold Monarch House Paint, ACME Quality House Paint, and
Lowe Brothers High Standard House Paint, which were all lead paints. In a 1934
promotional booklet, SWC proclaimed that it was the “world’s largest paint producer” and
“one of the country’s largest producers of White Lead.”
SWC promoted and sold its white lead products for residential use in the 10
jurisdictions. The primary message conveyed in advertisements for SWC’s paints, Monarch
paints, and ACME’s paints was that there was a specific coating for each purpose and that it
was important to get the right coating for each type of use. For example, a 1903 SWC
advertisement read: “No matter what you want to paint, . . . you’ll get best results and save
money if you use [¶] THE SHERWIN-WILLIAMS PAINTS [¶] A special paint for each
purpose.” A large group of SWC advertisements simply generically advertised SWC’s
brand, without specifying any particular paints. Many SWC advertisements were for
SWC’s non-lead “Kemtone” paint.
Advertisements for SWC’s SWP House Paint often specified that it was for exterior
use. Others simply referred to SWP as “house paint” without mentioning interior use. Still
others identified SWP as being for “wood surfaces” or for all “woodwork” surfaces.
However, there were also advertisements promoting SWP for interior residential use. 1904
SWC advertisements in the Los Angeles Times and the San Diego Union promoted SWP
In view of the parties’ stipulations, we are required to disregard evidence that SWC’s
Family Paint was promoted for interior residential use prior to 1941. 1901 and 1904
advertisements in the Los Angeles Times promoted SWC Family Paint for interior use. A
1923 SWC advertisement in the San Francisco Examiner promoted SWC’s Family Paint as
“an all-round paint for inside use.” A 1926 advertisement in the Oakland Tribune promoted
SWC Family Paint as a “household paint.”
42
For instance, SWC’s SWP Mildew Resisting White paint contained lead prior to
1954. Some of the colors in SWC’s SWP Colors contained lead until 1950. In 1938, SWC
also sold a lead paint called Zilo.
47
43
for “inside” use. In addition, SWC participated in the LIA’s Forest Products campaign
from 1937 to 1941, which promoted lead paint for interior residential use and particularly
for use on doors and window frames.
SWC had the requisite knowledge in 1900 of the public health hazard posed by lead
paint, but it nevertheless continued to promote lead paint for interior residential use
thereafter. This evidence supports the trial court’s finding that SWC engaged in the
requisite wrongful promotion.
4. Causation
Defendants contend that plaintiff did not produce substantial evidence that their
promotions of lead paint for interior residential use were a substantial factor in causing the
nuisance that the trial court required them to abate. First, they contend that there was no
evidence that their promotions actually had an impact on the use of lead paint on residential
interiors. Second, they contend that their wrongful promotions were too remote from the
current presence of any public health hazard created by interior residential lead paint,
which, they claim, is largely due to owner neglect, renovations, intervening actors
(architects, painters, etc.), and repainting that has taken place in the interim. Third, they
argue that, because they did not promote lead paint for interior residential use after 1950,
they could not be held responsible for use of lead paint on residential interiors of homes
built after 1950. The trial court’s judgment required defendants to remediate interior lead
paint in all homes built before 1980, even though most of those homes were built after
1950. Fourth, they maintain that there was no evidence that their promotions of lead paint
43
Although many of the advertisements for SWC paints were placed by hardware
stores or other retailers, SWC paid half of the cost of advertising by its authorized dealers,
so these advertisements may properly be attributed to SWC. A 1924 lumber store
advertisement in Monterey for Monarch lead paint suggested that it could be used for
interiors. However, the stipulation between SWC and plaintiff was that this paint contained
lead between 1925 and 1930, which does not include 1924 when this advertisement was
placed.
48
for interior residential use had a causal connection to the water leaks and soil lead that the
court ordered them to remediate. Fifth, defendants claim that plaintiff was required to show
that their individual lead paints are currently present in a large number of homes in the 10
jurisdictions. Sixth, they argue that due process requires that their liability for remediation
be proportionate to their individual contributions.
Causation is an element of a cause of action for public nuisance. (Melton v. Boustred
(2010) 183 Cal. App. 4th 521, 542.) “A connecting element to the prohibited harm must be
shown.” (In re Firearm Cases (2005) 126 Cal. App. 4th 959, 988 (Firearm Cases).) The
parties agree that the causation element of a public nuisance cause of action is satisfied if
the conduct of a defendant is a substantial factor in bringing about the result. (Citizens for
Odor Nuisance Abatement v. City of San Diego (2017) 8 Cal.App.5th 350, 359 [applying
substantial factor standard in a public nuisance action].) “ ‘The substantial factor standard is
a relatively broad one, requiring only that the contribution of the individual cause be more
than negligible or theoretical.’ [Citation.] Thus, ‘a force which plays only an
“infinitesimal” or “theoretical” part in bringing about injury, damage, or loss is not a
substantial factor’ [citation], but a very minor force that does cause harm is a substantial
factor [citation].” (Bockrath v. Aldrich Chemical Co., Inc. (1999) 21 Cal. 4th 71, 79.)
a. Impact and Remoteness
In this case, there was plenty of evidence that defendants’ affirmative promotions of
lead paint for interior residential use played at least a “minor” role in creating the nuisance
that now exists.
First, all three defendants participated in the LIA’s Forest Products campaign. The
Forest Products campaign began in 1934. In 1935, the LIA reported that its Forest Products
campaign had resulted in some manufacturers of leadless paints “changing their formulas to
include lead.” In 1939, the LIA reported to its members that, as a result of the Forest
Products campaign, (1) “[a]ll the principal producers of soft and hard lumber in the United
States . . . specify white lead or high grade prepared paint which contains white lead”
49
through the “distributi[on of] painting instruction leaflets (2,000,000 copies)”; (2) “[s]ome
paint companies have increased the lead content of their paint”; and (3) “sash and door
manufacturers” would be producing “20,000,000 labels to be affixed to nearly all the sash
and doors in the United States, featuring the use of white lead and high-grade prepared
paint.” In 1941, the LIA reported that the benefits of the Forest Products campaign were
continuing. “Lumber associations continued distributing, at their own expense, thousands
of painting leaflets recommending white lead or the highest grade prepared paints to be used
on their products” and that the “National Door Manufacturing Association” was “the latest
to use painting leaflets” to promote the use of white lead. The lumber manufacturers were
continuing to include “painting instruction leaflets” with their lumber products. Since lead
paint on doors and windows is one of the most hazardous uses for children due to the dust
created by their friction surfaces, this campaign played a significant role in creating the
nuisance that now exists.
Second, both NL and Fuller gave consumers of their lead paints explicit instructions
to use those paints on residential interiors. Fuller’s 1931 brochure for its lead paint
contained “Directions for Use” instructing consumers to use this lead paint for residential
interiors. Since Fuller’s advertisements frequently suggested that consumers obtain
brochures from a Fuller dealer, the brochure’s “Directions for Use” constituted instructions
to all those who purchased Fuller’s lead paint to use it for residential interiors. NL
produced its 1929 paint book, which promoted lead paint for interior residential use, and NL
published its 1950 “Handbook on Painting,” which explicitly recommended that consumers
use white lead paint on interior surfaces.
In sum, by persuading window and door manufacturers to attach written
recommendations to all windows and doors that lead paint should be used on those windows
and doors, all three defendants certainly played a significant role in causing lead paint to be
used on at least some of those windows and doors. Further, NL and Fuller, by explicitly
instructing consumers to use their lead paints on residential interiors, played an even more
50
direct role in causing lead paint to be used in such a manner. Again, the trial court could
reasonably infer that at least some of those who were the targets of these recommendations
heeded them. That is all that the substantial factor test requires.
We cannot credit defendants’ claim that there was no evidence that their promotions
were even “a very minor force”—“a substantial factor”—in causing the presence of lead
paint on residential interiors in the 10 jurisdictions. The LIA’s extensive advertising
campaigns, in which all three defendants participated, affirmatively promoted to painters,
architects, retailers, and consumers the use of lead paint on residential interiors, and each
defendant also individually promoted to consumers lead paint for use on residential interiors
in the 10 jurisdictions. The LIA judged its promotional campaigns to be a success, and the
fact that lead paint remains in place on residential interiors in many homes throughout the
10 jurisdictions decades after all of these promotions ceased reflects that this belief was
accurate. We find reasonable the inference that each individual defendant’s promotion of
lead paint for interior residential use, both through the LIA promotional campaigns and their
individual promotions, were at least “a very minor force” in leading to the current presence
of interior residential lead paint in a substantial number of homes in the 10 jurisdictions.
Defendants also contend that their wrongful promotions were too remote from the
current hazard to be its “legal cause.” They claim that, due to the lapse of time, this hazard
is more closely attributable to owner neglect, renovations, painters, architects, and
repainting. “A tort is a legal cause of injury only when it is a substantial factor in producing
the injury.” (Soule v. General Motors Corp. (1994) 8 Cal. 4th 548, 572.) “ ‘ “ ‘Legal cause’
exists if the actor’s conduct is a ‘substantial factor’ in bringing about the harm and there is
no rule of law relieving the actor from liability. [Citations.]” ’ [Citations.] ‘ “The doctrine of
proximate cause limits liability; i.e., in certain situations where the defendant’s conduct is
an actual cause of the harm, he will nevertheless be absolved because of the manner in
which the injury occurred.” ’ ” (Lombardo v. Huysentruyt (2001) 91 Cal. App. 4th 656, 665-
666.)
51
“ ‘Proximate cause involves two elements.’ [Citation.] ‘One is cause in fact. An act
is a cause in fact if it is a necessary antecedent of an event.’ [Citation.] . . . [¶] By contrast,
the second element focuses on public policy considerations. Because the purported causes
of an event may be traced back to the dawn of humanity, the law has imposed additional
‘limitations on liability other than simple causality.’ [Citation.] ‘These additional
limitations are related not only to the degree of connection between the conduct and the
injury, but also with public policy.’ [Citation.] Thus, ‘proximate cause’ “is ordinarily
concerned, not with the fact of causation, but with the various considerations of policy that
limit an actor’s responsibility for the consequences of his conduct.” ’ ” (Ferguson v. Lieff,
Cabraser, Heimann & Bernstein (2003) 30 Cal. 4th 1037, 1045.) “[T]here is no bright line
demarcating a legally sufficient proximate cause from one that is too remote. Ordinarily the
question will be for the [factfinder], though in some instances undisputed evidence may
reveal a cause so remote that a court may properly decide that no rational trier of fact could
find the needed nexus.” (People v. Roberts (1992) 2 Cal. 4th 271, 320, fn. 11.)
Defendants argue that they should be absolved of responsibility for the current
hazard because their wrongful conduct was “too remote” and “attenuated” from the current
44
hazard. This was a question of fact for the trial court. A rational factfinder could have
concluded that defendants’ wrongful promotions of lead paint for interior residential use
were not unduly remote from the presence of interior residential lead paint placed on those
residences during the period of defendants’ wrongful promotions and within a reasonable
period thereafter. The connection between the long-ago promotions and the current
44
The cases that defendants rely on provide no support for their argument. For
instance, the portion of Cabral v. Ralphs Grocery Co. (2011) 51 Cal. 4th 764 (Cabral) that
they cite concerned a duty determination, not a causation determination. (Cabral, at
p. 779.) The firearm manufacturers in Firearm Cases, supra, 126 Cal. App. 4th 959, unlike
defendants, did not affirmatively promote their products for a dangerous use. (Firearm
Cases, at pp. 988-989.) City of Chicago v. American Cyanamid Co. (Ill. App. Ct. 2005) 355
Ill.App.3d 209 was decided under Illinois law.
52
presence of lead paint was not particularly attenuated. Those who were influenced by the
promotions to use lead paint on residential interiors in the 10 jurisdictions were the single
conduit between defendants’ actions and the current hazard. Under these circumstances, the
trial court could have reasonably concluded that defendants’ promotions, which were a
substantial factor in creating the current hazard, were not too remote to be considered a
legal cause of the current hazard even if the actions of others in response to those
promotions and the passive neglect of owners also played a causal role. The court could
therefore have concluded that defendants’ promotions were the “legal cause” of the current
nuisance.
b. Post-1950 Homes
We find merit in defendants’ claim that the record lacks substantial evidence to
support the court’s finding that their wrongful promotions were causally connected to post-
1950 homes containing interior lead paint built before 1980.
Plaintiff claims that defendants’ wrongful promotions “sustained, increased, and
prolonged the use of lead paint in homes throughout the 20th century.” (Italics added.) It
asserts that this can be “inferred” from the “sheer breadth of Defendants’ promotional
activities” and the fact that there is currently lead paint in homes in the 10 jurisdictions.
Plaintiff also claims that NL continued to promote lead paint for interior residential use
beyond 1950.
First of all, plaintiff did not produce any evidence of an affirmative promotion by
NL, SWC, or Fuller of lead paint for interior residential use after 1950. The advertisements
that plaintiff identifies as post-1950 NL promotions did not promote lead paint for interior
residential use. Those advertisements promoted NL’s “Dutch Boy” brand of paints and
identified interior residential use as one of the uses for NL’s “Dutch Boy” brand of paints
without suggesting that any lead paint be used for interiors. NL stipulated at trial that its
“White Lead-in-Oil” and three of its “Dutch Boy” paints contained white lead, and plaintiff
presented no evidence that any other NL paint product contained lead. Since NL
53
indisputably made many Dutch Boy paints, NL’s promotion of its brand for many uses,
including interior residential use, did not amount to an affirmative promotion of lead paint
for interior residential use. Indeed, plaintiff’s argument seems to be based on the idea that
the mere fact that these advertisements identified National Lead Company as the maker of
Dutch Boy paints transformed advertisements for non-lead paints for interior use into
promotions of lead paint for interior use. We reject this unfounded argument.
NL contends that the evidence could not support a finding that it caused the use of
lead paint on residential interiors after 1955 because, according to NL, all lead paint bore a
label marking it as not for interior residential use beginning in 1955. The only citation to
the record that NL provides is to testimony by a defense expert about a standard created by
the American Standards Association in 1955. The expert testified that the LIA had
participated in the creation of that standard. He referenced a defense exhibit, a barely
legible copy of which appears in the record, that apparently contains the 1955 standard.
This standard states: “These specifications cover the requirements for coatings (such as
paints, enamels, lacquers, etc. applied in liquid form) which are deemed suitable from a
health standpoint to be used to paint children’s toys or furniture or interior surfaces so that
the danger of poisoning will be minimized if, by chance, some of this coating should be
chewed off and swallowed by a child.” “A liquid coating material to be deemed suitable,
from a health standpoint, for use on articles such as furniture, toys, etc, or for interior use in
dwelling units where it might be chewed by children” should not contain more than
1 percent lead. The standard states that coatings complying with it “may be marked:
‘Conforms to American Standard Z66.1-1955, for use on surfaces that might be chewed by
children.” Notably, this standard does not impose any labeling requirement of any kind on
lead paint.
Although one might draw an inference that the LIA’s participation in the creation of
this standard encouraged the compliance of its members, the trial court was not required to
draw that inference. Indeed, the standard itself stated: “The existence of an American
54
Standard does not in any respect preclude any party who has approved of the standard from
manufacturing, selling, or using products . . . not conforming to the standard.” Moreover,
this standard did not even suggest a label for lead paint. It pertained to a label for non-lead
paints. Nor is there any affirmative evidence in the record that even this standard was
enforced by anyone or that any defendant complied with it beginning in 1955.
Nevertheless, plaintiff’s assertion that the current presence of lead paint on
residential interiors itself establishes that defendants’ pre-1951 promotions caused it to be
placed there is speculative and attempts to eliminate the causation element entirely. While
we can accept the inference that defendants’ pre-1951 promotions increased the use of lead
paint on residential interiors during the period of those promotions, we reject plaintiff’s
claim that it is a reasonable inference that the impact of those promotions may be assumed
to have continued for the next 30 years. We can find no evidence in the record that supports
an inference that the promotions of defendants prior to 1951 continued to cause the use of
45
lead paint on residential interiors decades later. We therefore conclude that we cannot
uphold the trial court’s judgment requiring defendants to remediate all houses built before
46
1981 because there is no evidence to support causation as to the homes built after 1950.
c. Water Leaks and Soil Lead
Defendants also challenge on causation grounds the court’s inclusion of soil lead and
water leaks in its remediation plan.
45
ConAgra contends that the court erred in treating homes built before 1981 as an
“indivisible group.” We do not believe that the court treated these homes as an indivisible
group. The court’s remediation plan explicitly assigned homes built before 1950 to the
highest priority, while homes built from 1950 to 1981 were assigned a lower priority. Since
the age of a home is generally discoverable, homes may be readily distinguished from one
another based on the date they were built. Indeed, by limiting the remediation plan to
homes built before 1981, the court’s remediation plan already treated homes differently
based on their age.
46
On remand, the trial court will need to recalculate the amount of the abatement fund
accordingly.
55
This was a disputed issue at trial. Plaintiff’s experts testified: “[L]ead paint gets into
the soil from several routes. One is by the friction and impact surfaces, opening and closing
windows and doors on a home with lead-based paint. It also results from the weathering of
paint exterior on the home, rain and sun hits the paint, it deteriorates over time. And also
previous paint jobs, generally where they are sanding and scraping have contributed to soil
lead contamination around the home.” Lead concentrations are highest close to the home
“[b]ecause we know that the exterior is subject to weathering, because windows on the
exterior often have high lead concentrations and they are subject to friction and impact, and
because the previous painting jobs could have caused sanding and scraping on the exterior
47
of a home which often then resides as contamination of the soil close to the home.”
“[L]ead-based paint in housing now is the major source of contamination of both soil and
48
house dust.” Thus, plaintiff’s evidence established that a prime contributor to soil lead
was lead paint on the friction surfaces of windows and doors, which are interior, rather than
exterior surfaces. In keeping with this evidence, the judgment requires remediation of soil
lead only where the home itself contains interior lead paint. Under these circumstances, the
evidence supports the court’s implied finding that soil lead in those homes has been caused
by interior residential use of lead paint.
The court’s decision to include remediation of water leaks in the judgment is not a
causation issue. Plaintiff did not contend that the water leaks should be remediated because
they were caused by defendants’ promotions. The reason why remediation of water leaks is
47
One of plaintiff’s experts responded to the question “What are sources of lead in dust
in [sic] soil, other than -- your view is that the sources for dust and soil lead are lead-based
paint; right?” by saying “Sure. Where leaded paints are available. I mean in the housing
unit.” This response does not necessarily attribute soil lead to interior lead paint as the
question referred to both soil lead and household dust lead.
48
He also testified that “lead in housing” consisted of “lead paint, lead dust in housing,
and lead in soil.” Plaintiff’s expert testified that soil lead and dust lead inside houses are
linked because “the soil is often tracked into the home on people’s shoes.”
56
properly part of the remediation plan is that the court did not order remediation of all
interior lead paint. As water leaks could cause intact interior lead paint to deteriorate and
present a dangerous hazard to children, the remediation of water leaks was an appropriate
lesser alternative to removal of all interior lead paint. Since defendants’ wrongful
promotions caused the presence of interior lead paint, the court did not err in requiring
remediation designed to prevent that interior lead paint from harming children in those
homes.
d. Identification of Individual Paint
Defendants contend that their promotions cannot be found to have caused the
presence of interior lead paint in homes in the 10 jurisdictions without proof that paint made
by each of them is currently present in those homes. This contention misconstrues the basis
for defendants’ liability. Defendants are liable for promoting lead paint for interior
residential use. To the extent that this promotion caused lead paint to be used on residential
interiors, the identity of the manufacturer of that lead paint is irrelevant. Indeed, the LIA’s
promotions did not refer to any manufacturer of lead paint, but were generic. What matters
is whether defendants’ promotions were a substantial factor in leading to the use of lead
paint on residential interiors. Substantial evidence supports the court’s causation finding on
that basis.
e. Proportioned Liability
Defendants’ final challenge to the court’s causation finding is based on their claim
that they could not be held liable except in proportion to their individual contributions to the
creation of the public nuisance. They claim that due process precluded the imposition of a
remedy that was “grossly disproportionate to a defendant’s conduct.”
None of the cases they cite concerns causation in a public nuisance case.
Proportionality is not a causation issue. Defendants may be held liable for a public nuisance
that they assisted in creating if their wrongful promotions were a substantial factor in the
creation of that public nuisance. As we have already concluded, the evidence supports the
57
trial court’s finding at least as to homes built before 1951. Proportionate liability is
something that defendants may be able to determine by means of litigation between
themselves, but the fact that the remediation plan does not apportion liability among
defendants does not infect the court’s causation finding.
Citing the Restatement, defendants argue that “a defendant can be liable only for its
own contribution to a nuisance.” However, the Restatement comment upon which they rely
does not support their contention. It says: “[T]he burden rests upon the defendant to
produce sufficient evidence to permit the apportionment to be made. [¶] When the
apportionment is made, each person contributing to the nuisance is subject to liability only
for his own contribution. He is not liable for that of others; but the fact that the others are
contributing is not a defense to his own liability.” (Rest.2d Torts, § 840E, com. B, italics
added.) The trial court could have reasonably concluded that defendants did not prove that
the harm was capable of apportionment. The Restatement confirms that where the harm is
not capable of apportionment, each contributor is liable for the entire harm. (Rest.2d Torts,
§ 840E, com. c.) In this case, it is clear that the trial court properly concluded that the harm
was incapable of apportionment and therefore held all three defendants jointly and severally
liable for the entire harm.
5. Abatability, Imminent Danger, and Reduction of BLLs
Defendants contend that plaintiff failed to prove that defendants have the ability to
abate lead in private homes or that abatement can be achieved “at a reasonable cost by
reasonable means.”
This court rejected defendants’ “ability to abate” contention in Santa Clara I.
“ ‘[L]iability for nuisance does not hinge on whether the defendant owns, possesses or
controls the property, nor on whether he is in a position to abate the nuisance; the critical
58
question is whether the defendant created or assisted in the creation of the nuisance.’ ”
49
(Santa Clara I, supra, 137 Cal.App.4th at p. 306.) We decline to reconsider this issue.
Defendants’ “reasonable cost” contention is premised on Mangini v. Aerojet-General
Corp. (1996) 12 Cal. 4th 1087 (Mangini II). The issue in Mangini II concerned the statute of
limitations. (Mangini II, at p. 1090.) Because the plaintiffs had not filed their private
nuisance action within the three-year limitations period for a “permanent” nuisance, the
action was barred unless the nuisance was a “continuing” one. (Ibid.) “ ‘[T]he crucial test
of the permanency of a trespass or nuisance is whether the trespass or nuisance can be
discontinued or abated.’ ” (Mangini II, at p. 1097.) The California Supreme Court held that
the plaintiffs had failed to prove that the nuisance was abatable. However, the court
expressly denied that its holding would be applicable where the statute of limitations was
not at issue: “We express no opinion on the question whether a plaintiff who has filed a
timely nuisance action is required to prove that abatement can be accomplished at a
‘reasonable cost’ in order to be entitled to an injunction requiring the wrongdoing party to
remedy the damage to the property.” (Mangini II, at p. 1090.) Defendants choose to ignore
50
this statement, but it establishes that Mangini II provides no support for their claim.
Defendants’ reliance on County of San Diego v. Carlstrom (1961) 196 Cal. App. 2d
485 (Carlstrom) is also misplaced. Carlstrom was a case in which the defendants claimed
that the abatement injunction should have offered them abatement options other than
removal of the structures that the court had found to be a public nuisance. (Carlstrom, at
49
The Rhode Island and New Jersey cases upon which defendants rely are not helpful
as these cases did not apply California law. (State v. Lead Industries Ass’n, Inc. (R.I. 2008)
951 A.2d 428; In re Lead Paint Litigation ([June 15,] 2007) 191 N.J. 405.) We discuss
these out-of-state cases in section V of this opinion.
50
Beck Development Co. v. Southern Pacific Transportation Co. (1996) 44
Cal. App. 4th 1160 (Beck), like Mangini II, discussed abatability solely in the context of
whether a private nuisance cause of action was barred by the statute of limitations. (Beck, at
pp. 1216, 1219-1223.)
59
p. 493.) The Court of Appeal found that the trial court had not abused its discretion in
requiring removal. (Ibid.) We can find nothing in Carlstrom to support defendants’
abatability or reasonable cost contentions.
Defendants assert that plaintiff failed to establish that lead paint poses an imminent
danger of harm and that the abatement plan will reduce children’s BLLs. Plaintiff responds
that it presented substantial evidence that lead paint poses an imminent risk of harm and that
abatement, and particularly door and window replacement, will reduce the number of
children who are poisoned by lead paint.
Defendants rely on Helix Land Co. v. City of San Diego (1978) 82 Cal. App. 3d 932
(Helix) to support their claim that plaintiff failed to prove that lead paint poses an imminent
danger of harm. The plaintiff in Helix attempted to allege inverse condemnation and
nuisance causes of action based on its claim that its land was at greater risk of harm due to
the City’s actions and inactions regarding flood control. (Helix, at pp. 940, 950.) However,
the plaintiff failed to allege that the City’s actions “present[] a future hazard” to its land.
(Helix, at p. 950.) The plaintiff did not allege that any damage had occurred, and the court
found that it was mere speculation that damage might occur in the future. (Ibid.) The court
rejected the plaintiff’s nuisance cause of action on the ground that it had failed to allege that
a “prospective nuisance” was “either probable or imminent.” (Helix, at p. 951.)
Helix does not support defendants’ challenge to the trial court’s abatement order. In
this case, unlike in Helix, there was substantial evidence that interior residential lead paint
51
had been causing and will continue to cause harm to children in the 10 jurisdictions.
“Almost all human activity involves some risk, and in circumstances in which Civil Code
section 3479 is the only applicable statute, considerable judicial discretion has been allowed
in determining whether an alleged danger is sufficiently serious to justify abatement.” (City
51
They also cite Beck, but in Beck, unlike this case, there was “no evidence” of
potential harm from the alleged public nuisance. (Beck, supra, 44 Cal.App.4th at p. 1214.)
60
of Bakersfield v. Miller (1966) 64 Cal. 2d 93, 99 (Miller).) Every year, numerous children in
the 10 jurisdictions are found to be suffering from lead poisoning due to their exposure to
lead paint. “[T]he lead will not disappear on its own.” So long as interior residential lead
paint continues to exist in the 10 jurisdictions, this nuisance will continue to be an ongoing
and imminent risk to the health of the children in the 10 jurisdictions. The trial court did not
abuse its discretion in determining that the danger posed by interior residential lead paint in
the 10 jurisdictions poses a sufficiently serious and imminent risk of harm to merit
abatement.
Defendants also contend that abatement is unwarranted because plaintiff failed to
show that abatement will reduce the BLLs of children in the 10 jurisdictions. Plaintiff
presented expert testimony that abatement is effective at reducing BLLs in children.
Defendants concede that plaintiff presented such evidence, but they maintain that this expert
52
opinion testimony was “inadmissible guesswork.” The trial court admitted this evidence,
and defendants make no effort to demonstrate that the court abused its broad discretion in
doing so. Their citation to Sargon Enterprises, Inc. v. University of Southern California
(2012) 55 Cal. 4th 747 (Sargon) is not helpful to their contention. Sargon held that the trial
court has discretion as a “gatekeeper” to determine “whether the matter relied on [by an
expert] can provide a reasonable basis for the opinion or whether that opinion is based on a
leap of logic or conjecture.” (Sargon, at pp. 771-772.) Defendants fail to establish that the
trial court abused its discretion in finding that plaintiff’s expert’s opinion regarding BLL
52
Defendants repeatedly insist that the court ordered abatement of “intact” lead paint.
This insistence is misleading. With the exception of doors and windows, intact lead paint
on large surfaces such as walls would not be removed. Instead, paint stabilization
techniques would be applied to ensure that it remained intact. Lead-contaminated soil
would be covered or removed depending on its concentration. Windows and doors that had
been painted with lead paint would be replaced, as no other remediation would be effective.
Thus, the court did not order abatement of all “intact” lead paint in the 10 jurisdictions. The
abatement plan targeted only the highest risks, while avoiding the creation of additional
risks of contamination that might follow from the removal of all intact lead paint.
61
reductions had a reasonable basis. Since the evidence was properly admitted, the trial court
was entitled to credit it. The substance of defendants’ argument is that the trial court should
not have credited this testimony, but an appellate court must defer to a trial court’s
credibility determinations. We reject this contention.
B. Public Right
Defendants contend that plaintiff failed to establish that interior residential lead paint
53
interferes with any “public right.”
“ ‘Anything which is injurious to health . . . or is indecent or offensive to the senses,
or an obstruction to the free use of property, so as to interfere with the comfortable
enjoyment of life or property . . . is a nuisance.’ (Civ. Code, § 3479, italics added.) ‘A
public nuisance is one which affects at the same time an entire community or neighborhood,
or any considerable number of persons, although the extent of the annoyance or damage
inflicted upon individuals may be unequal.’ (Civ. Code, § 3480[, italics added].) . . . [¶]
‘[P]ublic nuisances are offenses against, or interferences with, the exercise of rights
common to the public.’ (People ex rel. Gallo v. Acuna (1997) 14 Cal. 4th 1090, 1103 [60
Cal. Rptr. 2d 277, 929 P.2d 596], [first italics added, second italics are] original italics.) ‘Of
course, not every interference with collective social interests constitutes a public nuisance.
To qualify, and thus be enjoinable [or abatable], the interference must be both substantial
and unreasonable.’ ([Id. at p. 1105].) It is substantial if it causes significant harm and
unreasonable if its social utility is outweighed by the gravity of the harm inflicted. ([Ibid].)”
(Santa Clara I, supra, 137 Cal.App.4th at p. 305.)
53
They also claim that, “if this were a factual question, not a legal one,” we would be
precluded from inferring a trial court finding on it because the trial court failed to identify
any “public right” in its statement of decision even though it was pointed out to the court in
objections. However, they concede that this is a legal issue, and we agree.
62
Defendants concede that a “public right is one relating to common resources,” but
they contend that interior residential lead paint does not interfere with any “public right”
because it causes only private harms in private residences. They claim that the trial court
erroneously based its public nuisance finding on an “aggregation of private harms.”
Defendants contend that a public nuisance can exist only if it “harm[s] people in their
exercise of a public right.” (Italics added.)
Interior residential lead paint that is in a dangerous condition does not merely pose a
risk of private harm in private residences. The community has a collective social interest in
the safety of children in residential housing. Interior residential lead paint interferes with
the community’s “public right” to housing that does not poison children. This interference
seriously threatens to cause grave harm to the physical health of the community’s children.
Defendants cite no California authority for their claim that no public right is threatened by
interior residential lead paint, and we reject their reliance on Rhode Island and Illinois cases
applying those states’ laws, which they seem to concede are not as broad as California’s.
Defendants argue that “[t]he ‘public’ has no right to be present inside a private home,
and thus, any possible lead exposure inside a private home cannot occur in the exercise of
any public right.” Most members of the “public” reside in residential housing, and we do
not accept defendants’ claim that, unlike streets, residential housing is not a shared
community resource. Residential housing, like water, electricity, natural gas, and sewer
services, is an essential community resource. Indeed, without residential housing, it would
be nearly impossible for the “public” to obtain access to water, electricity, gas, and sewer
services. Pervasive lead exposure in residential housing threatens the public right to
essential community resources. We reject defendants’ contention that interior residential
lead paint cannot interfere with a public right.
63
C. Regulatory Standards, Nuisance Per Se, and Separation of Powers
Defendants claim that interior residential lead paint cannot be a public nuisance
because it does not violate any regulatory standards, and “[t]he court must follow state
regulations declaring intact LBP [lead-based paint] not a hazard, even on friction surfaces.
(H&S Code §17920.10.)”
“Nothing which is done or maintained under the express authority of a statute can be
deemed a nuisance.” (Civ. Code, § 3482.) Health and Safety Code section 17920.10 does
not “declar[e]” that “intact” lead paint is “not a hazard.” This statute provides that buildings
that contain “lead hazards,” as it defines them “for the purposes of this part” (primarily
54
deteriorated lead paint), are in violation of the Health and Safety Code. (Health & Saf.
54
Health and Safety Code section 17920.10 provides: “(a) Any building or portion
thereof including any dwelling unit, guestroom, or suite of rooms, or portion thereof, or the
premises on which it is located, is deemed to be in violation of this part as to any portion
that contains lead hazards. For purposes of this part, ‘lead hazards’ means deteriorated
lead-based paint, lead-contaminated dust, lead-contaminated soil, or disturbing lead-based
paint without containment, if one or more of these hazards are present in one or more
locations in amounts that are equal to or exceed the amounts of lead established for these
terms in Chapter 8 (commencing with Section 35001) of Division 1 of Title 17 of the
California Code of Regulations or by this section and that are likely to endanger the health
of the public or the occupants thereof as a result of their proximity to the public or the
occupants thereof. [¶] (b) In the absence of new regulations adopted by the State
Department of Health Services in accordance with the rulemaking provisions of the
Administrative Procedure Act (Chapter 3.5 (commencing with Section 11340) of Part 1 of
Division 3 of Title 2 of the Government Code) further interpreting or clarifying the terms
‘deteriorated lead-based paint,’ ‘lead-based paint,’ ‘lead-contaminated dust,’ ‘containment,’
or ‘lead-contaminated soil,’ regulations in Chapter 8 (commencing with Section 35001) of
Division 1 of Title 17 of the California Code of Regulations adopted by the State
Department of Health Services pursuant to Sections 105250 and 124150 shall interpret or
clarify these terms. If the State Department of Health Services adopts new regulations
defining these terms, the new regulations shall supersede the prior regulations for the
purposes of this part. [¶] (c) In the absence of new regulations adopted by the State
Department of Health Services in accordance with the rulemaking provisions of the
Administrative Procedure Act defining the term ‘disturbing lead-based paint without
containment’ or modifying the term ‘deteriorated lead-based paint,’ for purposes of this part
‘disturbing lead-based paint without containment’ and ‘deteriorated lead-based paint’ shall
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Code, § 17920.10, subd. (a).) Nowhere in this statute does the Legislature declare that any
other type of lead paint in buildings is not a hazard, is lawful, or is authorized by statute.
All that this statute does is identify certain defined “lead hazards” as violations of the Health
and Safety Code. The mere fact that not all interior residential lead paint violates the Health
and Safety Code does not mean that it cannot be abated as a public nuisance. “ ‘A statutory
sanction cannot be pleaded in justification of acts which by the general rules of law
constitute a nuisance, unless the acts complained of are authorized by the express terms of
the statute under which the justification is made, or by the plainest and most necessary
implication from the powers expressly conferred, so that it can be fairly stated that the
legislature contemplated the doing of the very act which occasions the injury.’ ” (Hassell v.
City and County of San Francisco (1938) 11 Cal. 2d 168, 171.)
Nor does the absence of a regulation or statute declaring interior residential lead
paint to be unlawful bar a court from declaring it to be a public nuisance. “The fact that a
building was constructed in accordance with all existing statutes does not immunize it from
subsequent abatement as a public nuisance. . . . It would be an unreasonable limitation on
the powers of the city to require that this [presently existing] danger be tolerated ad
be considered lead hazards as described in subdivision (a) only if the aggregate affected
area is equal to or in excess of one of the following: [¶] (1) Two square feet in any one
interior room or space. [¶] (2) Twenty square feet on exterior surfaces. [¶] (3) Ten
percent of the surface area on the interior or exterior type of component with a small surface
area. Examples include window sills, baseboards, and trim. [¶] (d) Notwithstanding
subdivision (c), ‘disturbing lead-based paint without containment’ and ‘deteriorated lead-
based paint’ shall be considered lead hazards, for purposes of this part, if it is determined
that an area smaller than those specified in subdivision (c) is associated with a person with a
blood lead level equal to or greater than 10 micrograms per deciliter. [¶] (e) If the State
Department of Health Services adopts regulations defining or redefining the terms
‘deteriorated lead-based paint,’ ‘lead-contaminated dust,’ ‘lead-contaminated soil,’
‘disturbing lead-based paint without containment,’ ‘containment,’ or ‘lead-based paint,’ the
effective date of the new regulations shall be deferred for a minimum of three months after
their approval by the Office of Administrative Law and the regulations shall take effect on
the next July 1 or January 1 following that three-month period. Until the new definitions
apply, the prior definition shall apply.”
65
infinitum merely because the [building] did not violate the statutes in effect when it was
constructed 36 years ago.” (Miller, supra, 64 Cal.2d at pp. 101-102.)
Defendants contend: “[T]he trial court declared lead paint to be a nuisance by
category. This inverts the role of the two branches of government, because only the
Legislature has the power to choose between declaring a nuisance per se and finding a
nuisance in specific circumstances.” The trial court did no such thing. “Generally a
nuisance is defined as ‘[a]nything which is injurious to health, or is indecent or offensive to
the senses, or an obstruction to the free use of property, so as to interfere with the
comfortable enjoyment of life or property . . . .’ (Civ. Code, § 3479.) This requires
consideration and balancing of a variety of factors. [Citations.] However, where the law
expressly declares something to be a nuisance, then no inquiry beyond its existence need be
made and in this sense its mere existence is said to be a nuisance per se. [Citation.] But, to
rephrase the rule, to be considered a nuisance per se the object, substance, activity or
circumstance at issue must be expressly declared to be a nuisance by its very existence by
some applicable law.” (Beck, supra, 44 Cal.App.4th at pp. 1206-1207.)
The trial court did not declare the “very existence” of lead paint or even interior
residential lead paint to be a public nuisance. The court crafted a very limited order
requiring abatement of only deteriorated interior lead paint, lead paint on friction surfaces,
and lead-contaminated soil at residences in the 10 jurisdictions. It did not find that lead
paint itself is a nuisance per se but only that the specific targets of its order produce or
contain lead that has been shown to threaten the safety of children in their homes. It is only
under these limited circumstances that lead paint poses an immediate threat to the health of
children and must be abated as a public nuisance. The court’s order was well within the
general authority of Civil Code section 3479, so its order was not a declaration of a nuisance
per se.
Defendants argue that the trial court’s order violated separation of powers principles
because the Legislature chose in 2001 not to declare the presence of lead paint in a
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residence to be a nuisance. They assert that the Legislature rejected a 2001 bill that would
have declared the presence of lead paint in a residence to be a public nuisance and instead
enacted a statute that “permits owners to maintain intact LBP in residences.” Defendants
misrepresent the nature of the Legislature’s 2001 actions. The unpassed bill, Assembly Bill
No. 422 (2001-2002 Reg. Sess.) would have enacted a statute providing that “[a]ny
condition on real property that a local health department has determined poses a lead hazard
risk to public children is a public nuisance for purposes of Section 3479 of the Civil Code.”
(Assem. Bill No. 422 (2001-2002 Reg. Sess.) as introduced and amended Feb. 20, 2001.)
This bill was not limited to residences, did not address “intact” lead paint, and did not
propose to declare anything to be a public nuisance absent a determination by a local
agency. The enacted bill, Senate Bill No. 460, was directed toward lead hazard abatement.
It enacted Health and Safety Code section 17920.10, providing that a “dwelling” would be
“deemed untenantable” if it “contains lead hazards” as defined (primarily deteriorated lead
paint). Senate Bill No. 460 also enacted Health and Safety Code section 17980, which
mandated that an “enforcement agency” that “determined” a building contained “lead
hazards” “shall commence proceedings to abate the violation by repair, rehabilitation,
vacation, or demolition of the building.” (Health & Saf. Code, § 17980, subd. (b)(1).) And
it provided for criminal charges against a person who did not comply with such an
abatement order. (Health & Saf. Code, § 105256.)
First of all, “[u]npassed bills, as evidences of legislative intent, have little value.”
(Dyna-Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal. 3d 1379, 1396.)
Furthermore, the Legislature’s 2001 actions cannot reasonably be viewed as rejecting the
possibility that conditions created by lead paint in the interiors of residences that posed an
imminent danger to children could constitute public nuisances. By authorizing abatement
actions for lead hazards and criminal charges against those who did not comply with
abatement orders, the Legislature took a strong stance against lead hazards in dwellings by
enacting Senate Bill No. 460. Assembly Bill No. 422, unlike Senate Bill No. 460 and the
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trial court’s order, was not limited to dwellings and gave local health departments the power
to declare “real property” to be a public nuisance. The Legislature’s rejection of Assembly
Bill No. 422 was therefore not a rejection of the potential for a court to conclude that certain
conditions created by lead paint in the interiors of residences and posing an imminent
danger to children were public nuisances.
Defendants also submit an extended argument that the trial court’s order has adverse
policy implications. We are not persuaded that these arguments could support a reversal of
the trial court’s abatement order. It may well be that a multi-pronged approach to this
problem will be necessary, with the court’s abatement order serving as merely one of
several methods necessary to resolve this problem. What the evidence in this case
demonstrates is that defendants are wrong in claiming that California’s statutory scheme
creating the CLPPB and local CLPPPs fully addresses childhood lead exposure.
The CLPPB’s $28 million annual budget is largely funded by a special fee called the
Childhood Lead Poisoning Prevention fee, and also by Medi-Cal, the EPA, the CDC, and a
special fund for lead-related construction. The Childhood Lead Poisoning Prevention fee,
which provides about $20 million a year, is funded by the industries that put lead into the
environment. About 14 percent of those fees are paid by makers and former makers of
55
“architectural coatings.” The vast majority of the fees are paid by motor vehicle fuel
56
distributors. Even with the CLPPB, local CLPPPs, and state statutes addressing lead
55
“ ‘Architectural coating’ means any product which is used as, or usable as, a coating
applied to the interior or exterior surfaces of stationary structures and their appurtenances,
to portable buildings, to pavements, or to curbs, such as house and trim paints, varnishes,
stains, lacquers, industrial maintenance coatings, primers, undercoaters, and traffic
coatings.” (Cal. Code Regs., tit. 17, § 33002.)
56
Motor vehicle fuel contained lead from the 1920s until it began to be phased out in
the 1970s and 1980s. It was not eliminated until the 1990s. The percentages were not
based on distribution of lead into the environment by the products but on the amount of lead
used in the products.
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hazards, many children in the 10 jurisdictions continue to suffer serious harm from lead
paint in their homes.
The evidence presented at trial demonstrated that the trial court’s abatement order
will reduce the risk of further harm to children in the 10 jurisdictions from lead paint. The
Legislature has not precluded courts from utilizing public nuisance law to prevent further
harm, and we are aware of no public policy reason to preclude courts from taking such
actions. Lead poisoning has been estimated to cost society $50 billion a year. For every
dollar that is spent on preventing lead exposure, there is a savings to society of between $17
and $220. We reject defendants’ claims that the court’s abatement order usurps the
Legislature’s powers.
D. Joint and Several Liability
Defendants contend that the trial court erred in imposing joint and several liability.
They claim that this resulted in a “disproportionate, unfair burden” being placed on each of
them when many people were involved in the creation of the nuisance.
The trial court expressly found that “[d]efendants offered no evidence that an
abatement remedy can be apportioned” and that the remedy was indivisible. While liability
often may be capable of apportionment in a public nuisance case, “[t]here are other cases in
which the harm resulting from a nuisance is not capable of apportionment to the several
contributors upon any reasonable or rational basis.” (Rest.2d. Torts, § 840E, com. c.) Each
defendant bore the burden of producing evidence upon which an apportionment could be
made. (Rest.2d Torts, § 840E, com. b.) “Unless sufficient evidence permits the factfinder
to determine that damages are divisible, they are indivisible.” (Rest.3d Torts:
Apportionment of Liability, § 26, com. g.) When a court determines that apportionment
cannot be accomplished, each defendant who contributed is liable for the entire harm.
(Rest.2d Torts, § 840E, com. c.)
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“Where several persons act in concert and damages result from their joint tort, each
person is held for the entire damages unless segregation as to causation can be established.
Even though persons are not acting in concert, if the result produced by their acts are [sic]
indivisible, each person is held liable for the whole. . . . The reason for imposing liability
on each for the entire consequence is that there exists no basis for dividing damages and the
law is loath to permit an innocent plaintiff to suffer as against a wrongdoing defendant.
This liability is imposed where each cause is sufficient in itself as well as where each cause
is required to produce the result. [¶] . . . [T]he same reason[s] of policy and justice shift
the burden to each of defendants to absolve himself if he can—relieving the wronged person
of the duty of apportioning the injury to a particular defendant, apply here where we are
concerned with whether plaintiff is required to supply evidence for the apportionment of
damages. If defendants are independent tort feasors and thus each liable for the damage
caused by him alone, and, at least, where the matter of apportionment is incapable of proof,
the innocent wronged party should not be deprived of his right to redress. The wrongdoers
should be left to work out between themselves an apportionment.” (Finnegan v. Royal
Realty Co. (1950) 35 Cal. 2d 409, 433-434.)
“[T]he mere fact that it may be possible to assign some percentage figure to the
relative culpability of one negligent defendant as compared to another does not in any way
suggest that each defendant’s negligence is not a proximate cause of the entire indivisible
injury.” (American Motorcycle Assn. v. Superior Court (1978) 20 Cal. 3d 578, 588-589
[citing Finnegan].) “Principles of equitable indemnity would enable these defendants to
sort out their respective liabilities. It does not affect the right of a plaintiff to recover the
entire judgment from any one of them.” (Sanchez v. Bay General Hospital (1981) 116
Cal. App. 3d 776, 796-797.)
The trial court determined that defendants had failed to establish that the public
nuisance was divisible, and we review this factual finding for substantial evidence. Only
SWC argues that it presented evidence supporting an apportionment. SWC asserts that it
70
was responsible for only a tiny percentage of “the total lead used in California from 1894 to
2009,” that it paid its share of the CLPP fee, and that “thousands of persons contributed” to
the presence of lead paint inside residences. The trial court could reasonably conclude that
SWC’s evidence did not support an apportionment of liability for the public nuisance
created by the promotion of lead paint for interior residential use by defendants. The
evidence presented at trial did not establish that an entity’s share of the total amount of lead
used in California bore any relationship to that entity’s liability for the amount of lead paint
present in residences in the 10 jurisdictions. The evidence presented at trial indicated that
nonresidential uses of lead have been the historically predominant ones. The Legislature’s
establishment of the CLPP fee was not intended to limit liability for promotion of lead paint
for interior residential use, as that fee was not premised on such conduct but merely on total
lead contribution. Finally, SWC did not establish that the “thousands of persons” who were
also involved in the use of lead paint inside residences (painters, architects, homeowners,
etc.) promoted the use of lead paint inside residences with knowledge of the danger such
use would produce. Thus, those persons were not joint tortfeasors with defendants. Since
defendants failed to show that the public nuisance was divisible, we uphold the trial court’s
imposition of joint and several liability for the nuisance created by defendants’ conduct.
E. Collective Liability and Due Process
Defendants argue that the court erred in “categorically declar[ing] all properties with
interior LBP to be a nuisance sight unseen.” Defendants maintain that the court’s finding of
a “collective nuisance” deprived them of due process because they did not have the
opportunity to inspect each individual property and defend against their liability on a
residence-by-residence basis. They insist that plaintiff was required to identify the location
of each individual property in order to establish a public nuisance. Defendants claim that
the court’s order cannot be upheld because there was no evidence that any individual
defendant’s lead was present in any specific location. They assert that access to individual
71
properties would have permitted each of them to “rule out the presence of its WLC [white
lead carbonate], to develop evidence of the primary lead sources, to prove the owner’s fault,
or to show that its WLC, if present, posed no imminent threat of harm to any child.” They
contend that due process forbids requiring any one defendant to abate a nuisance created by
“others’ products.”
The trial court did not “declare” all interior lead paint to be a public nuisance.
Instead, the court’s abatement order was limited to conditions created by interior residential
lead paint that placed children at imminent risk of harm. Due to the nature of the conduct
that defendants engaged in, knowingly promoting lead paint for interior residential use
throughout a vast area that is home to millions of people, every one of the precise locations
at which these conditions currently exist has not yet been fully catalogued. Plaintiff
established the existence of a public nuisance by proving that these conditions are pervasive
in the 10 jurisdictions, but the enormous cost of discovering each and every one of the
specific locations where remediation is necessary must be borne by the wrongdoers, in this
case defendants. It cannot be that the highly insidious character of the public nuisance
created by defendants renders it beyond the reach of a public nuisance abatement action.
Defendants were not deprived of due process because they were not provided with
access to individual properties. None of the defendants claimed that it could differentiate
“its” lead paint from other lead paint at an individual location. And even if a defendant
could have proved that its paint was present in only a portion of the individual properties,
the identity of the manufacturer of lead paint at a specific location was of limited relevance.
Defendants were held liable for promoting lead paint for interior residential use. Their
promotional activities were not limited to advertisements for their own lead paints. They
also generically promoted lead paint for interior residential use. Furthermore, nothing
precludes a defendant from testing the lead paint at specific locations during the remediation
process and seeking to hold a fellow defendant liable for a greater share of the
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responsibility. The same is true of evidence that the hazardous condition is “the owner’s
fault” or that it is not hazardous.
None of the cases defendants rely upon has any import on this issue. Defendants rely
on class certification cases stating that a defendant has a right to assert individual defenses
to each class member’s entitlement to recover. (Wal-Mart Stores, Inc. v. Dukes (2011) 564
U.S. 338, 366; Duran v. U.S. Bank National Assn. (2014) 59 Cal. 4th 1, 29; In re Fibreboard
Corp. (5th Cir. 1990) 893 F.2d 706 [asbestos class action].) This is not a class action, and
no individuals seek to recover anything from defendants. Stanley v. Illinois (1972) 405 U.S.
645 is also not on point, as it concerned due process rights in an action to terminate a
father’s parental rights. McClatchy v. Superior Court of County of Sacramento (1897) 119
Cal. 413 does not support defendants’ argument as it concerned a newspaper editor’s due
process right to offer a defense in a contempt proceeding.
Since defendants have failed to establish that the court’s public nuisance findings and
abatement order deprived them of due process by imposing “collective liability,” we reject
their contention.
F. Disproportionality and Due Process
Defendants argue that the court’s abatement order violates due process because it
“grossly exceeds” their individual responsibility for the nuisance.
The trial court found that defendants promoted lead paint for interior residential use
in the 10 jurisdictions and that their conduct was a substantial factor in creating the existing
public nuisance that requires remediation. Since their conduct caused the existing public
nuisance that they are being ordered to abate, the burden of that remediation is not
disproportional to their individual responsibilities for assisting in its creation. Defendants’
reliance on punitive damages and penalty cases is misplaced. Here, defendants are not
being penalized or required to pay damages of any kind. They are being required simply to
73
clean up the hazardous conditions that they assisted in creating. Requiring them to do so is
not disproportional to their wrongdoing.
Defendants also complain that the trial court imposed “retroactive liability” “in
hindsight.” Not so. The only conduct for which defendants are being held responsible is
their promotion of lead paint for interior residential use knowing of the public health hazard
that such use would create. There is no “hindsight” or “retroactive liability” involved in
requiring those who knowingly engage in hazardous conduct to remediate the consequences
of their conduct.
G. Denial of Jury Trial
Defendants claim that the trial court erred in denying them a jury trial. They
maintain that the California Constitution guaranteed them a right to a jury trial in this public
nuisance action by the government even though this was an equitable action seeking only
abatement because, they argue, the common law in 1850 recognized a right to a jury trial in
public nuisance actions except for an action based on a nuisance per se.
Plaintiff, NL, and ConAgra filed jury demands. However, plaintiff subsequently
filed a motion to strike the jury demands and to have a court trial. Plaintiff asserted that
there was no right to jury trial on a public nuisance cause of action seeking abatement or on
a cause of action for equitable contribution or declaratory relief. Defendants opposed
plaintiff’s motion to strike the jury demands. The court granted plaintiff’s motion and
struck the jury demands, and the case was tried to the court.
“Trial by jury is an inviolate right and shall be secured to all . . . .” (Cal. Const., art.
I, § 16.) Generally, “if the action is essentially one in equity and the relief sought ‘depends
upon the application of equitable doctrines,’ the parties are not entitled to a jury trial.” (C &
K Engineering Contractors v. Amber Steel Co. (1978) 23 Cal. 3d 1, 9.) However, “[i]t is
settled that the state constitutional right to a jury trial ‘is the right as it existed at common
law in 1850, when the Constitution was first adopted, “and what that right is, is a purely
74
historical question, a fact which is to be ascertained like any other social, political or legal
fact.” [Citations.]’ ” (Franchise Tax Bd. v. Superior Court (2011) 51 Cal. 4th 1006, 1010.)
“Our state Constitution essentially preserves the right to a jury in those actions in
which there was a right to a jury trial at common law at the time the Constitution was first
adopted. [Citation.] Thus, the scope of the constitutional right to jury trial depends on the
provisions for jury trial at common law. The historical analysis of the common law right to
jury often relies on the traditional distinction between courts at law, in which a jury sat, and
courts of equity, in which there was no jury.” (Crouchman v. Superior Court (1988) 45
Cal. 3d 1167, 1175.)
“In determining whether the action was one triable by a jury at common law, the
court is not bound by the form of the action but rather by the nature of the rights involved
and the facts of the particular case—the gist of the action. A jury trial must be granted
where the gist of the action is legal, where the action is in reality cognizable at law.
[¶] . . . The constitutional right of trial by jury is not to be narrowly construed. It is not
limited strictly to those cases in which it existed before the adoption of the Constitution but
is extended to cases of like nature as may afterwards arise. It embraces cases of the same
class thereafter arising.” (People v. One 1941 Chevrolet Coupe (1951) 37 Cal. 2d 283, 299-
300 (One 1941).)
The question before us is whether in 1850 the common law recognized a right to a
jury trial in public nuisance actions by the government that sought only abatement or in
“cases of like nature.” At the outset, we must consider exactly what cases are of “like
nature” to the one before us. Many of the cases relied on by the parties are private nuisance,
rather than public nuisance, cases. Others sought damages, rather than or in addition to
equitable relief. Still others sought an injunction, but the nature of the injunction was not
remedial, but preventative, or was an interlocutory injunction pending trial, rather than
permanent relief after a full trial.
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“Unlike public nuisance, which is an interference with the rights of the community at
large, private nuisance is a civil wrong based on disturbance of rights in land. [Citation.] A
nuisance may be both public and private, but to proceed on a private nuisance theory the
plaintiff must prove an injury specifically referable to the use and enjoyment of his or her
land. The injury, however, need not be different in kind from that suffered by the general
public.” (Koll-Irvine Center Property Owners Assn. v. County of Orange (1994) 24
Cal. App. 4th 1036, 1041.) While damages may be available in both public and private
nuisance actions, damages are not an available remedy in the type of public nuisance action
that was brought by plaintiff in this case, a representative public nuisance action.
“[A]lthough California’s general nuisance statute expressly permits the recovery of
damages in a public nuisance action brought by a specially injured party, it does not grant a
damage remedy in actions brought on behalf of the People to abate a public nuisance.”
(People ex rel. Van de Kamp v. American Art Enterprises, Inc. (1983) 33 Cal. 3d 328, 333,
fn. 11.) Code of Civil Procedure section 731 permits such an action to “abate a public
nuisance,” but it does not allow the government to seek damages.
Because public and private nuisance actions are distinct, and public nuisance actions
brought as representative actions are different from those brought by the government on its
own behalf, our examination of this issue must focus on whether the common law in 1850
granted a right to a jury trial in a representative public nuisance action by the government
seeking only abatement.
Defendants rely heavily on an 1849 treatise written by United States Supreme Court
Justice Joseph Story. The Fifth Edition of this treatise explained that a “public nuisance”
was traditionally punished by way of an indictment. It went on to say: “But an information
also lies in Equity to redress the grievance by way of injunction. . . . If the soil does not
belong to the crown, but it is merely a common nuisance to all the public, an information in
Equity lies. But the question of nuisance or not must, in cases of doubt, be tried by a jury;
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and the injunction will be granted or not, as that fact is decided.” (Story’s Commentaries on
Equity Jurisprudence as administered in England (5th ed. 1849) chpt. XXIII, § 923, p. 251.)
Justice Story’s treatise provides some support for defendants’ claim that they were
entitled to a jury trial in this case. However, a treatise is not itself sufficient to establish this
factual question. We must examine the cases cited by Justice Story as support for this
passage to determine whether they reflect that a right to a jury trial was recognized in 1850
for a representative public nuisance action by the government seeking only abatement.
One of the cases cited by Justice Story was The Attorney General v. Cleaver (1811)
34 Eng.Rep. 297 [18 Ves. Jun. 212] (Cleaver). Cleaver was an action by the Attorney-
General “at the relation of individuals” seeking a temporary and permanent restraining order
57
against a manufacturer whose factory was causing injury to nearby residents. (Ibid.) The
issue before the court was whether to grant a request for a pretrial injunction. (Ibid.) The
court declined to issue an injunction in advance of a trial on whether the factory constituted
a nuisance. The court stated: “[I]f the soil belongs to the Crown, there is one species of
remedy for that: the Crown may abate the obstruction; as it is upon the King’s soil. Where
it is not upon the King’s soil, but merely a public nuisance to all the King’s subjects, though
the suit may be in the same form, the law is laid down in treatises [citation] that upon the
ground of public nuisance, and not as an obstruction upon the King’s soil, it is a question of
fact, which must be tried by a Jury; and, though the suit may be entertained, the Court
would be bound to try the fact by the intervention of a Jury.” (Cleaver, at p. 299, italics
added.) While Cleaver appears to support the proposition that, as of 1811, a jury trial may
have been required in a representative public nuisance action seeking only an injunction, it
57
Although the Attorney-General brought the action, the manufacturer asserted that
“[t]his is not a public prosecution by the Attorney General, but at the relation of several
inhabitants of the neighbourhood; and there is a wide distinction between the two sorts of
Information.” (Cleaver, supra, 34 Eng.Rep at p. 298.)
77
is notable that Cleaver did not involve a remedial abatement order but a prohibitory
injunction.
A subsequent case, Earl of Ripon v. Hobart (1834) 40 Eng.Rep. 65 [also reported at
47 Eng.Rep. 119] (Earl of Ripon), pointed out the important distinction between a
prohibitory or preventative injunction and other types of injunctive relief. Earl of Ripon
concerned an action brought by the government seeking an injunction to preclude the use of
steam engines (instead of windmills) to drain lowlands. (Earl of Ripon, at pp. 65-67.) The
plaintiffs claimed steam engines would send water more continuously and more quickly into
the river than would windmills, thereby putting pressure on and damaging the river’s banks.
(Earl of Ripon, at p. 65.) The Chancellor refused to grant an injunction. The Chancellor
described “the rule respecting the relief by injunction, as applied to such cases to be,” which
it described as cases of “eventual or contingent nuisance.” (Earl of Ripon, at p. 69, italics
added.) “If the thing sought to be prohibited is in itself a nuisance, the Court will interfere
to stay irreparable mischief, without waiting for the result of a trial; and will, according to
the circumstances, direct an issue, or allow an action, and, if need be, expedite the
proceedings, the injunction being in the meantime continued. But where the thing sought to
be restrained is not unavoidably and in itself noxious, but only something which may
according to circumstances, prove so, then the Court will refuse to interfere until the matter
has been tried at law, generally by an action, though, in particular cases, an issue may be
directed for the satisfaction of the Court, where an action could not be framed so as to meet
the question. [¶] The distinction between the two kinds of erection or operation is obvious,
and the soundness of that discretion seems undeniable, which would be very slow to
interfere where the thing to be stopped, while it is highly beneficial to one party, may very
possibly be prejudicial to none. The great fitness of pausing much before we interrupt men
in those modes of enjoying or improving their property which are prima facie harmless, or
even praiseworthy, is equally manifest; and it is always to be borne in mind that the
jurisdiction of this Court over nuisance by injunction at all is of recent growth, has not till
78
very lately been much exercised, and has at various times found great reluctance on the part
of the learned Judges to use it, even in cases where the thing or the act complained of was
admitted to be directly and immediately hurtful to the Complainant.” (Ibid.)
The explanation given by the Chancellor in Earl of Ripon illuminates the limited
nature of the rules governing the power of equity courts to grant injunctions that were
evolving at that time, and that had not been explicated in Cleaver. The Chancellor’s
reluctance to grant injunctive relief without a jury trial in Earl of Ripon was due to the fact
that the nuisance was “contingent,” that is, prospective, and therefore an injunction would
bar potentially beneficial activity. (Earl of Ripon, supra, 40 Eng.Rep. at p. 69.) That type
of injunction differs dramatically from a remedial abatement order. When the government
seeks a remedial abatement order, the nuisance is not contingent, and the remedy does not
bar some prospective activity. Abatement is restricted to undoing already accomplished
harmful conditions. The rule described by the Chancellor in Earl of Ripon did not require a
jury trial in cases seeking a remedial abatement order.
The remaining cases cited by Justice Story all fall within the rule described in Earl of
Ripon; they concerned prohibitory injunctions against activities that might prove beneficial
and might not prove to cause the feared harm. Attorney-General v. Cohoes Co. (N.Y. Ch.
1836) 1836 WL 2625 [6 Paige Ch. 133; 3 N.Y. Ch.Ann. 928] was solely concerned with a
pretrial motion to dissolve an injunction; the court denied the motion. The injunction had
been obtained to prevent a mill company from breaching a canal and withdrawing water
pending trial on whether the breach would create a public nuisance. (Cohoes, at pp. 134-
135.) Attorney General v. Forbes (1836) 40 Eng.Rep. 587 [2 My. & Cr. 123] (Forbes) was
58
a pretrial request for an injunction to prevent the potential creation of a public nuisance.
58
Forbes was a dispute between Bucks County and Berks County about the repair of a
bridge that ran across the river between the two counties. The center of the bridge was the
line between the two counties. Although the two counties had originally agreed to share the
cost of repairs to the bridge, when it came time for additional repairs to the bridge, they
could not reach an agreement on the mode of repair. (Forbes, supra, 40 Eng.Rep. at
79
Notably, in neither Cohoes nor Forbes was a jury trial required before the court granted an
injunction.
Crowder v. Tinkler (1816) 34 Eng.Rep. 645 [19 Ves. Jun. 618] (Crowder) was an
action by private plaintiffs seeking a pretrial injunction to stop the defendants from building
a new building and using it to store gunpowder close to the plaintiffs’ paper mills and
homes. (Crowder, at pp. 645-646, 647-648 [19 Ves. Jun., at pp. 618-619, 625].) Crowder
is distinguishable both because it was not a representative public nuisance action and
because it sought a prohibitory injunction.
Mohawk Bridge Co. v. Utica & S.R. Co. (N.Y. Ch. 1837) 6 Paige Ch. 554 [1837 WL
2675] (Mohawk Bridge) was an action by a bridge company seeking an injunction to
prevent the erection by a railway company of a railway bridge over a river. (Mohawk
Bridge, at p. 561.) The government was not the plaintiff. The New York court reasoned:
“If the thing sought to be prohibited is in itself a nuisance, the court will interfere to stay
irreparable mischief, where the complainant’s right is not doubtful, without waiting for the
result of a trial. But where the thing sought to be restrained is not in itself noxious, but only
pp. 587-588 [2 My. & Cr., at pp. 123-124].) Berks County wanted to rebuild the entire
bridge out of iron. Bucks County wanted to repair the wooden bridge. (Forbes, at pp. 588-
589 [2 My. & Cr., at p. 125].) The oak joists that supported the center of the bridge ran
from one county’s last pier to the other county’s last pier and had been funded equally by
both counties when the bridge was previously repaired. (Forbes, at pp. 587-588 [2 My. &
Cr., at pp. 123-124].) Bucks proposed a plan of repair that would have replaced the oak
joists that supported the center with new oak joists, but Berks would not agree to that plan.
Bucks was forced to alter its plan and instead repaired its half of the bridge in such a fashion
that the old oak joists were left undisturbed and new joists were run only from the center of
the bridge to the last pier in Bucks County. (Forbes, at pp. 588-589 [2 My. & Cr., at pp.
125-126].) The new joists depended on the old joists for support. (Ibid.) Berks then
notified Bucks that it intended to cut the old oak joists at the center, thereby depriving the
center of the bridge of any support. (Forbes, at pp. 589-590 [2 My. & Cr., at pp. 126-127].)
Bucks sought a preventative injunction on the ground that the cutting of the old oak joists
would create a public nuisance because the center of the bridge would be unsupported.
(Forbes, at p. 589 [2 My. & Cr., at p. 127].) The court granted a pretrial injunction.
(Forbes, at p. 590 [2 My. & Cr., at pp. 129-130].)
80
something which may according to circumstances prove to be so, the court will refuse to
interfere until the matter has been tried at law by an action; though in particular cases the
court may direct an issue, for its own satisfaction, where an action could not be brought in
such a form as to meet the question. And in applying these principles, if the magnitude of
the injury to be dreaded is great, and the risk so imminent that no prudent person would
think of incurring it, the court will not refuse its aid for the protection of the complainant’s
rights, by injunction, on the ground that there is a bare possibility that the anticipated injury
from the noxious erection may not happen.” (Mohawk, at p. 563.) As in Crowder, the
action in Mohawk was not brought by the government and sought a prohibitory injunction.
Baines v. Baker (1752) 27 Eng.Rep. 105 [AMB. 158] (Baines) was a nuisance action
brought by a private party seeking an injunction to prevent the building of a hospital near
the plaintiff’s property to house patients suffering from smallpox. It was not an action
brought by the government, and, like the other cases, it was an action seeking a prohibitory
injunction, not a remedial injunction.
The remaining English cases cited by defendants are distinguishable on similar
grounds. The Attorney General v. The United Kingdom Electric Telegraph Company
(1861) 54 Eng.Rep. 899 [30 Beav. 287] (Electric Telegraph) was not an action for a
remedial abatement order. In Electric Telegraph, the Baron and the Attorney General
sought an “interlocutory injunction” to bar a telegraph company from putting telegraph
wires in trenches across public highways and on land owned by the Baron. They claimed
that the wires created a public nuisance. (Electric Telegraph, at p. 901.) The court found
that, as to the Attorney General’s action, it was “very doubtful” whether there was a public
nuisance and no clear showing of any injury to the public. (Ibid.) Under these
circumstances, the court refused to grant an injunction until the Attorney General
“establish[es] the fact that the act done is a nuisance at law . . . .” (Ibid.) The court stated:
“This case depends upon a legal right, which must be established to the satisfaction of the
Court before the equity can be administered; without it, it would be impossible to say that
81
either the acts of the company or the works amounted to a nuisance. The one side insists
that the works cause an obstruction, and, on the other side, persons are found to say they do
not; but no tribunal is so fit to try this question of fact as a jury, who will have the assistance
59
of a Judge to direct them as to the law.” (Electric Telegraph, at p. 902.) While the
Electric Telegraph opinion suggested that a jury trial would be appropriate to determine
whether the wires were a public nuisance, the court did not actually speak of a “right” to a
jury trial and did not consider whether a jury trial would be required in a public nuisance
action seeking only a remedial abatement order. Instead, the court simply found that the
evidence before it did not justify a finding that the wires were a public nuisance and
determined that this issue would be best tried by a jury in that particular case. Since the
59
Defendants cite an alternate version of this opinion in a different reporter. In the
alternate version, the language is significantly different. At the beginning of the alternate
version, the court says: “The main question with which I have to deal now is, whether the
acts complained of do or do not amount to a nuisance. If they did, I should have no
hesitation in granting an injunction; but I confess I am not at present prepared to do more
than send the case to be tried before a jury, in an action at law.” The court then proceeds to
address the claims of the Baron and of the Attorney General separately.
Defendants quote the following language: “In ordinary cases, where the issue of a
suit in equity depends upon a legal right, that right must be ascertained at law before any
relief can be granted by this court.” This language appears in the portion of the alternate
version addressing the Baron’s claim, not the Attorney General’s claim, and the court took
great pains to distinguish between the two claims. Hence, it is not material to the issue
before us.
In the portion of the alternate version addressing the Attorney General’s claim, the
court says: “With regard to the fact of these posts and wires being nuisances, I am by no
means clear, that upon the evidence before me I can determine whether they are or are not
such; at all events, I think I cannot say that they are. In truth, the question, what is a
nuisance, is one peculiarly fitted for investigation by a jury.” (The Attorney-General v. The
United Kingdom Electric Telegraph Company (1861) The Law Times, vol. V, N.S. at
pp. 338-339.) Even if we were to accept that the alternate version is entitled to credence, it
does not support defendants’ claim. The court was unwilling to issue a preventative
injunction because it deemed the evidence before it to be inadequate, and it simply did not
rule out that it might do so after a trial before a jury. This ruling does not establish that
there was a right to a jury trial at that time in a public nuisance action seeking only a
remedial abatement order.
82
action before us did not seek a preventative injunction, and the trial court found the
evidence sufficient to support a remedial injunction, Electric Telegraph is inapposite.
Walter v. Selfe (1851) 64 Eng.Rep. 849 (Walter) was a private nuisance action
between private parties seeking an injunction. (Walter, at p. 851.) The Chancery court
stated that the parties had “declin[ed] to go before a jury,” and it granted the plaintiffs’
request for an injunction. (Walter, at p. 853.) Nowhere in the Walter opinion is there any
indication that a public nuisance action by the government seeking only a remedial
injunction would have been required to be tried to a jury. Imperial Gas Light and Coke
Company v. Broadbent (1859) 11 Eng.Rep. 239 [7 H.L.C. 600] (Imperial) was not a public
nuisance action but a private nuisance action between private parties in which the plaintiff
sought an injunction to stop the defendants from manufacturing gas near his house. The
opinion contains broad language: “There is no doubt whatever that before a perpetual
injunction can be granted, the party applying for it must establish his right by a proceeding
at law.” (Imperial, at p. 242.) Since Imperial was a private nuisance action seeking a
prohibitory injunction, its statements about the need for a proceeding “at law” (a jury trial)
can only be understood as applying in that context.
The distinction between prohibitory injunctions and abatement orders was
recognized in the 1850s in England. In Attorney-General v. Birmingham Council (1858) 70
Eng.Rep. 220 [4 K.&J. 528] (Birmingham), the plaintiffs sought an abatement order barring
the defendants from continuing to pollute a river with sewage. (Birmingham, at p. 220.)
The defendants argued before the Chancellor that under Cleaver and Earl of Ripon the
Chancellor should not interfere and should leave the plaintiffs to seek a remedy at common
law. (Birmingham, at p. 223.) The Chancellor rejected this argument and granted an
abatement injunction. (Birmingham, at p. 228.)
83
60
The cases defendants cite from the United States are also distinguishable. Pilcher
v. Hart (1840) 20 Tenn. 524 was a trespass action for damages between private parties. (Id.
at p. 530.) Davidson v. Isham (N.J. Ch. 1852) 9 N.J. Eq. 186 was an action between private
parties. Middleton v. Franklin (1853) 3 Cal. 238 was an action between private parties.
Gunter v. Geary (1851) 1 Cal. 462 (Gunter) was an action for damages by private plaintiffs
against the mayor of San Francisco for destroying the plaintiffs’ house, which had been
tried to a jury and resulted in a judgment for damages. (Gunter, at pp. 463-464.) None of
these cases contains any indication of whether a jury trial was required at common law in
1850 in a representative public nuisance action by the government seeking only a remedial
abatement order.
The remaining California cases cited by defendants are similarly distinguishable.
Farrell v. City of Ontario (1919) 39 Cal. App. 351 (Farrell) was a private nuisance action by
a private party against a municipality seeking both damages and an injunction. (Farrell, at
pp. 352-353.) The case was tried to a jury, which returned a damages verdict for the
plaintiff. (Id. at p. 353.) The trial court nevertheless entered judgment for the defendants.
60
Appeal of McClain (1890) 130 Pa. 546 (McClain), which defendants cite in a string
cite but do not discuss, was an action by a city seeking the destruction of a dam on the
ground that it was a public nuisance. (McClain, at p. 560.) The Pennsylvania Supreme
Court stated: “We do not question the power of a court of equity to restrain and abate
public nuisances. This is settled by a line of decisions. But the authorities uniformly limit
the jurisdiction to cases where the right has first been established at law, or is conceded. It
was never intended, and I do not know of a case in the books where a chancellor has
usurped the functions of a jury, and attempted to decide disputed questions of fact, and pass
upon conflicting evidence in such cases.” (McClain, at p. 562.) “We think that, under all
the circumstances of this case, the defendants are entitled to a trial by jury before their
property shall be condemned as a nuisance, and destroyed.” (McClain, at p. 564.) While
McClain was a public nuisance action by the government seeking a remedial abatement
order, it has little weight as authority because it significantly postdates 1850 (by four
decades) and appears to rely heavily on the fact that the requested relief was that private
property be “condemned . . . and destroyed.” The case before us does not threaten the
destruction of any of defendants’ private property, and a case from 1890 does not provide
strong evidence of what was a common law right in 1850.
84
(Ibid.) On appeal, the plaintiffs contended that they were entitled to a jury trial, and
therefore the trial court had erred in entering judgment contrary to the jury’s verdict. (Ibid.)
The court in Farrell relied on Walter and Imperial Gas in finding that there was a right to a
jury trial in this private nuisance action for damages. (Farrell, at pp. 356-357.) It held:
“[U]nder the English common law as it stood in 1850, at the time it was adopted as the rule
of decision in this state, ‘if a plaintiff applies for an injunction to restrain a violation of a
common-law right, if either the existence of the right or the fact of its violation be disputed,
he must establish that right at law’; or, in other words, by a jury, if one be demanded. We
conclude, therefore, that the parties here were entitled to a jury trial upon the issues as to
damages and that the verdict of the jury thereon was binding.” (Farrell, at p. 357.) Still,
the Farrell court emphasized that “the equitable issues . . . are to be determined by the court
upon findings of fact made by it.” (Farrell, at p. 359, italics added.) Since Farrell was a
private nuisance action seeking damages, it does not tell us whether a jury trial is required in
a representative public nuisance action by the government seeking only a remedial
abatement order.
Pacific Western Oil Co. v. Bern Oil Co. (1939) 13 Cal. 2d 60 (Pacific Western) was
an action between private parties seeking a prohibitory injunction and damages. (Pacific
Western, at p. 64.) The trial court awarded damages and a prohibitory injunction. (Pacific
Western, at p. 66.) On appeal, the defendants contended that they had been deprived of
their right to a jury trial, and the court, relying on Farrell, agreed. However, the court
limited its holding to situations “wherein both legal and equitable remedies are the subject
of the action.” (Pacific Western, at p. 69.)
Pacific Western partly overruled McCarthy v. Gaston Ridge Mill & Mining Co.
(1904) 144 Cal. 542 (McCarthy). McCarthy was a private nuisance action for damages and
an injunction. Although a jury rejected the plaintiff’s damages claim, the trial court rejected
the jury’s verdict and awarded the plaintiff damages but no injunction. (McCarthy, at
pp. 543-545.) On appeal, the defendant contended that the plaintiff’s action was one in
85
which the defendant was entitled to a jury trial. (McCarthy, at p. 545.) The California
Supreme Court disagreed. “The prevention or abatement of a nuisance is to be
accomplished by means of an injunction either prohibitive or mandatory, and an action
therefor is within the equitable jurisdiction of the court, and is to be governed by the
principles prevailing in that jurisdiction. [Citations.] The constitution does not give to a
party the right to have the issues in such action tried by a jury, nor is the action within those
in which the legislature has authorized a jury trial.” (McCarthy, at pp. 545-546.) Pacific
Western overruled McCarthy to the extent that it held that there was no right to a jury trial
in a private nuisance action that sought both an injunction and damages. (Pacific Western,
supra, 13 Cal.2d at p. 69.)
The California Supreme Court has never held that there is or is not a right to a jury
trial in a public nuisance action brought by the government that seeks only a remedial
abatement order. It has held that there is no right to a jury trial in a private nuisance action
seeking only abatement. Sullivan v. Royer (1887) 72 Cal. 248 (Sullivan) was an action to
abate and enjoin a private nuisance. A jury found for the plaintiff, and the defendant
appealed, claiming that the jury had been misinstructed. The California Supreme Court held
that any jury instruction errors were immaterial because there was no right to a jury trial in
an equitable action to abate a nuisance. (Sullivan, at pp. 249-250.) The court reached the
same holding in Richardson v. City of Eureka (1895) 110 Cal. 441, which was also a private
nuisance case. (Id. at p. 446.)
The California Supreme Court has mentioned in dicta that there is no right to a jury
trial in a public nuisance case seeking only abatement. One 1941 was a forfeiture case
brought by the government in which the legal owner of the vehicle claimed that he had been
denied his constitutional right to a jury trial. (One 1941, supra, 37 Cal.2d at pp. 285-286.)
The issue was whether an in rem forfeiture action was a common law action entitled to a
jury trial in 1850. The California Supreme Court compared an in rem forfeiture action to an
action to abate a public nuisance. “ ‘The right of trial by jury did not exist at common law in
86
a suit to abate a public nuisance. (People v. McCaddon, 48 Cal. App. 790, 792 [192 P.
325].) Hence it is not a constitutional right now. [¶] Automobiles, carriages, wagons,
horses, and mules, that are ordinarily used for lawful purposes, cannot be classified with
narcotics, gambling paraphernalia, counterfeit coins, diseased cattle, obscene books and
pictures, decayed fruit and fish, unwholesome meat, infected clothing, or other contraband,
which are ordinarily used for an unlawful purpose, and are public nuisances per se. [Fn.
omitted.] While property kept in violation of law which is incapable of lawful use and
declared to be a nuisance per se may be forfeited without a trial by jury under the police
power, it does not follow that property ordinarily used for lawful purposes—innocent
property—may be forfeited without a trial by jury where an issue of fact is joined as to
whether the property was being used for an unlawful purpose or is to be taken from an
innocent owner. There is no general constitutional right to a jury trial in actions for the
seizure and forfeiture of contraband articles. [Fn. omitted.] But property is not contraband
or a public nuisance merely because it was instrumental in the commission of a public
offense.’ ” (One 1941, at pp. 298-299.)
In One 1941, the California Supreme Court cited People v. McCaddon (1920) 48
Cal. App. 790 (McCaddon) to support the proposition that there is no right to a jury trial in a
public nuisance action seeking only abatement. McCaddon was a public nuisance action by
the government to abate a public nuisance. (McCaddon, at p. 790.) The claim on appeal
was that the trial court had erred in denying the defendants a jury trial. (McCaddon, at
p. 791.) The Court of Appeal devoted no significant analysis to the issue, instead stating:
“[T]he rule is too well established to need discussion here. This being an action for an
injunction, neither the constitution nor the statute requires the submission of the issues to a
jury. It is not error to deny a jury in any case where such right was not granted at common
law. [Citations.]” (McCaddon, at p. 792.) Not one of the citations in the court’s string cite
was to a public nuisance case.
87
Numerous Court of Appeal cases have stated that there is no right to a jury trial in a
public nuisance action by the government seeking only abatement. For example, People v.
Frangadakis (1960) 184 Cal. App. 2d 540 (Frangadakis) was an action by the government to
abate a public nuisance in which the defendants contended on appeal that they had been
deprived of their constitutional right to a jury trial. The Court of Appeal, citing One 1941,
rejected their contention without substantive analysis. (Frangadakis, at pp. 543, 545-546.)
People v. Englebrecht (2001) 88 Cal. App. 4th 1236 (Englebrecht) did the same.
(Englebrecht, at p. 1245.)
There is no binding California Supreme Court holding on the issue of whether a jury
trial is required in a representative public nuisance action by the government seeking only a
remedial abatement order. This issue is “ ‘ “a purely historical question, a fact which is to be
ascertained like any other social, political or legal fact.” [Citations.]’ ” (Franchise Tax Bd.
v. Superior Court, supra, 51 Cal.4th at p. 1010.) Defendants have failed to show that the
trial court erred in finding that there was not a right to a jury trial under the common law in
1850 in a representative public nuisance action brought by the government seeking solely a
remedial abatement order. The historical materials upon which defendants rely reflect that
representative public nuisance cases brought by the government seeking only remedial
abatement orders were not exclusively tried in common law courts but could be resolved in
equity courts by the Chancellors. None of the cases from the 19th century involved a cause
of action closely analogous to the representative public nuisance cause of action seeking
only remedial abatement brought by plaintiff in this action. Given this historical record, we
must reject their contention that they were deprived of their right to a jury trial.
H. Abatement Fund
Defendants contend that the trial court’s abatement order was invalid because it was
actually an order that they pay damages.
88
The trial court’s statement of decision required “abatement through the establishment
of a fund, in the name of the People, dedicated to abating the public nuisance” that would
“be administered by the State of California,” unless the State was “unwilling or unable” to
do so, in which case the 10 jurisdictions would serve as receivers and administrators of the
fund. “Payments into the fund shall be deposited into an account established in the name of
the People and disbursed by the [CLPPB] on behalf of the People.” “The Defendants
against whom judgment is entered, jointly and severally, shall pay to the People of the State
of California, in a manner consistent with California law, $1,150,000,000 (One Billion One
Hundred Fifty Million Dollars) into a specifically designated, dedicated, and restricted
abatement fund (the ‘Fund’) [¶] . . . within 60 days of entry of judgment.” The funds will be
disbursed to the 10 jurisdictions to pay for remediation in accordance with the abatement
plan. “The [remediation] program shall last for four years from the date of total payment by
defendants into the Fund. If, at the end of four years, any funds remain, those monies shall
be returned to the paying defendants in the ratio by which the program was initially funded.
The Superior Court of California, County of Santa Clara, shall have continuing jurisdiction
over the Plan and its implementation.”
Defendants assert that “[t]he [abatement] Plan is nothing more than a thinly-
disguised damages award to Plaintiffs for unattributed past harm to private homes over
which Defendants have no control.”
“An abatement of a nuisance is accomplished by a court of equity by means of an
injunction proper and suitable to the facts of each case.” (Sullivan, supra, 72 Cal. at p. 249.)
“ ‘[T]he granting, denial, dissolving, or refusing to dissolve a permanent or preliminary
injunction rests in the sound discretion of the trial court upon a consideration of all the
particular circumstances of each individual case.’ [Citation] Such an order will not be
modified or dissolved on appeal except for an abuse of discretion.” (Union Interchange,
Inc. v. Savage (1959) 52 Cal. 2d 601, 606.)
89
A public entity may not recover in a representative public nuisance action any funds
that it has already expended to remediate a public nuisance. This court acknowledged as
much in Santa Clara I. (Santa Clara I, supra, 137 Cal.App.4th at p. 310.) The trial court’s
abatement order in this case did not attempt to award any already-incurred costs to plaintiff
or to any of the 10 jurisdictions. Instead, the court’s abatement order directed defendants to
deposit funds in an abatement fund, which would be utilized to prospectively fund
remediation of the public nuisance. None of these funds were permitted to be utilized to
reimburse plaintiff, any of the 10 jurisdictions, or any homeowners for already-incurred
costs.
The abatement fund was not a “thinly-disguised” damages award. The distinction
between an abatement order and a damages award is stark. An abatement order is an
equitable remedy, while damages are a legal remedy. An equitable remedy’s sole purpose
is to eliminate the hazard that is causing prospective harm to the plaintiff. An equitable
remedy provides no compensation to a plaintiff for prior harm. Damages, on the other
hand, are directed at compensating the plaintiff for prior accrued harm that has resulted
from the defendant’s wrongful conduct. The distinction between these two types of
remedies frequently arises in nuisance actions. Generally, continuing nuisances are subject
to abatement, and permanent nuisances are subject to actions for damages. (Baker v.
Burbank-Glendale-Pasadena Airport Authority (1985) 39 Cal. 3d 862, 868-870.) As Code
of Civil Procedure section 731 permits a public entity plaintiff to seek abatement of a public
nuisance in a representative action, the trial court could properly order abatement as a
remedy in this case.
Here, plaintiff sought the equitable remedy of abatement for the nuisance because the
hazard created by defendants was continuing to cause harm to children, and that harm could
be prevented only by removing the hazard. Plaintiff did not seek to recover for any prior
accrued harm nor did it seek compensation of any kind. The deposits that the trial court
required defendants to make into the abatement account would be utilized not to
90
recompense anyone for accrued harm but solely to pay for the prospective removal of the
hazards defendants had created. Furthermore, any funds that had not been utilized for that
sole purpose by the end of the four-year abatement period were to be returned to defendants.
While the trial court did require defendants to make deposits into the account to provide the
funds necessary to carry out the abatement, the court’s estimate of the amount that would be
necessary for that purpose was just that: an estimate. The trial court could have chosen to
have defendants handle the remediation themselves, but such an order would have been
difficult for the court to oversee and for defendants to undertake. The court’s reasonable
decision to create a remediation fund overseen by a knowledgeable receiver, and ultimately
by the court, was not an abuse of discretion under the specific circumstances of this case.
Because the trial court’s abatement order did not require defendants to reimburse
anyone for already incurred costs, defendants’ reliance on County of San Luis Obispo v.
Abalone Alliance (1986) 178 Cal. App. 3d 848 (Abalone), which this court cited in Santa
Clara I, is misplaced. In Abalone, the county sought to recover $700,000 in costs that it had
incurred as a result of the defendants’ “blockade . . . .” (Abalone, at p. 859.) The Court of
Appeal rejected the county’s attempt to characterize these already incurred costs as “costs of
abatement” so that they could be recovered in a public nuisance abatement action.
(Abalone, at pp. 859-860.) As the court pointed out, these already-incurred costs were
“damages,” and therefore not recoverable by a public entity in a public nuisance abatement
action. (Abalone, at pp. 859-861.)
The distinction between an abatement fund and damages was recognized by the
Third Circuit Court of Appeals in United States v. Price (3d Cir. 1982) 688 F.2d 204
(Price). Price was an appeal from the district court’s denial of a preliminary injunction in a
case where the defendants were alleged to be responsible for contaminating a city’s water
supply. While the Third Circuit affirmed the district court’s exercise of its discretion to
deny preliminary relief, it pointed out that the district court had taken an “unduly restrictive
view of its remedial powers . . . .” (Price, at p. 211.) “Damages are awarded as a form of
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substitutional redress. They are intended to compensate a party for an injury suffered or
other loss. A request for funds for a diagnostic study of the public health threat posed by
the continuing contamination and its abatement is not, in any sense, a traditional form of
damages. The funding of a diagnostic study in the present case, though it would require
monetary payments, would be preventive rather than compensatory. The study is intended
to be the first step in the remedial process of abating an existing but growing toxic hazard
which, if left unchecked, will result in even graver future injury, i.e., the contamination of
Atlantic City’s water supply.” (Price, at p. 212.)
While the trial court’s order in this case may be unusual in requiring defendants to
prefund remediation costs, it was well within the court’s discretion. The California
Supreme Court presciently noted in Santa Clara II that “[t]his case will result, at most, in
defendants’ having to expend resources to abate the lead-paint nuisance they allegedly
created, either by paying into a fund dedicated to that abatement purpose or by undertaking
the abatement themselves.” (Santa Clara II, supra, 50 Cal.4th at pp. 55-56, italics added.)
The abatement fund ordered by the trial court was a reasonable method of prefunding the
remediation that is required to abate the public nuisance created by defendants. The choice
of this method was not an abuse of the court’s broad discretion to fashion an appropriate
abatement injunction.
Defendants briefly complain that the trial court erred “by ordering defendants to pay
into a plan that provides no judicial oversight, and no mechanism for return of unused funds
to defendants.” We see no such flaws in the court’s order. The court expressly provided
that it would retain jurisdiction “over the Plan and its implementation.” And it explicitly
ordered, “If, at the end of four years, any funds remain, those monies shall be returned to the
paying defendants in the ratio by which the program was initially funded.” Thus, there is no
basis for defendant’s complaints.
There is also no merit to defendants’ claim that the abatement fund will somehow be
“placed into the State treasury . . . .” The trial court’s order explicitly required defendants to
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deposit funds into “a specifically designated, dedicated, and restricted abatement fund.” It
plainly did not require, contemplate, or permit the deposit of those funds into “the State
treasury . . . .”
I. Laches
ConAgra contends that plaintiff’s public nuisance cause of action was barred by
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laches. Plaintiff asserts that laches was not an available defense to its public nuisance
abatement cause of action. The trial court expressly rejected ConAgra’s laches contention
in its statement of decision, but ConAgra contends that it is raising solely a legal issue upon
which we exercise independent review. Although a trial court’s decision on a laches issue
is ordinarily subject to deferential review, the issue of whether laches is a legally available
defense is a legal issue subject to de novo review. (City and County of San Francisco v.
Ballard (2006) 136 Cal. App. 4th 381, 392.)
Civil Code section 3490 expressly provides that “[n]o lapse of time can legalize a
public nuisance, amounting to an actual obstruction of public right.” (Civ. Code, § 3490.)
ConAgra claims that this statute does not apply because interior residential lead paint does
not actually obstruct any public right. As we have already explained, plaintiff established
that pervasive interior residential lead paint in the housing stock of the 10 jurisdictions
obstructs the public right to safe housing. An obstruction is something that impedes or
hinders. (Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 803.) Interior residential
lead paint “actual[ly]” impedes or hinders the public right to safe housing because it renders
unsafe for young children a large amount of residential housing in the 10 jurisdictions. We
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Although defendants generally join each other’s contentions, ConAgra’s laches
argument is premised on facts concerning only itself. NL makes no mention of laches in its
briefs. SWC makes only the briefest mention of laches in its opening brief. Because NL
and SWC have chosen not to argue this issue as to their particular facts, and ConAgra’s
contention is premised on facts applicable only to itself, we discuss this issue solely as it
applies to ConAgra.
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reject ConAgra’s claim that interior residential lead paint does not amount to an actual
obstruction of a public right.
ConAgra also claims that Civil Code section 3490 does not apply here because it is
not seeking to “legalize” any continuing conduct, such as putting lead paint in residential
housing. Nowhere in the text of Civil Code section 3490 do we discern any indication that
it is limited to continuing conduct. Legalize means to “make legal,” and “legal” means
“conforming to” the law. (Merriam-Webster’s Collegiate Dict. (10th ed. 1993) p. 664.)
Public nuisances are criminal. (Pen. Code, § 372.) The public nuisance created by
defendants is not “conforming to” the law, and permitting defendants to avoid responsibility
for abating this public nuisance would allow this unlawful public nuisance to continue to
exist. Under these circumstances, Civil Code section 3490 does apply, and any “lapse of
time” does not preclude plaintiff’s action to abate the unlawful public nuisance created by
defendants.
ConAgra further asserts that “public policy” supports the application of laches in this
case. “ ‘Laches is an equitable defense based on the principle that those who neglect their
rights may be barred from obtaining relief in equity. [Citation.]’ ” (Feduniak v. California
Coastal Com. (2007) 148 Cal. App. 4th 1346, 1381, italics added.) “It is clear, however, that
neither the doctrine of estoppel nor any other equitable principle may be invoked against a
governmental body where it would operate to defeat the effective operation of a policy
adopted to protect the public.” (County of San Diego v. California Water & Tel. Co. (1947)
30 Cal. 2d 817, 826, italics added.)
Since laches is an equitable defense, it could not be asserted against the government,
even if it were not barred by Civil Code section 3490, because such an application would
defeat a public policy aimed at protecting the public. Civil Code section 3479 is an
expression of the Legislature’s public policy against public nuisances, and it is plainly
aimed at protecting the public from the hazards created by public nuisances.
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Given these conclusions, we need not consider ConAgra’s extended and irrelevant
argument that the public nuisance it assisted in creating was permanent rather than
continuing. The trial court did not err in rejecting ConAgra’s laches defense.
J. Procedural and Evidentiary Issues
Defendants contend that the trial court erred in (1) admitting hearsay documents,
permitting experts to testify about hearsay documents, and considering limited purpose
hearsay documents for their truth; (2) making a blanket ruling disallowing recross-
examination; (3) imposing time limits and rejecting offers of proof and deposition
designations; (4) changing the relevant product from white lead to lead paint during trial;
(5) not allowing defendants adequate time to analyze the “RASSCLE” database, which was
not fully provided to defendants until three weeks before trial; (6) not allowing defendants
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to inspect specific properties; and (7) not sanctioning plaintiff for spoliation of evidence.
1. Hearsay Documents
Defendants claim that the trial court prejudicially erred in (1) admitting hearsay
documents into evidence under Evidence Code section 1280 that did not meet that statute’s
requirements, (2) permitting plaintiff’s expert historians to give opinion testimony based on
hearsay documents that were not admitted into evidence at trial or were admitted only for a
limited purpose, (3) permitting plaintiff’s experts to quote those limited purpose documents
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while testifying, and (4) considering limited purpose hearsay documents for their truth.
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The trial court advised the parties before trial that an objection by one defendant
would be “applicable to” all defendants. The court reiterated this at trial. Hence, we
analyze these contentions as to all defendants even if only one of them objected at trial.
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Defendants’ appellate briefing makes it difficult if not impossible to determine
precisely which trial court rulings on defense objections are being challenged on appeal.
For instance, ConAgra refers in its brief to some testimony by plaintiff’s expert Markowitz.
Defendants did not interject any hearsay objections to the testimony of Markowitz to which
they refer. At one point, during Markowitz’s testimony, ConAgra’s trial counsel asked the
court whether a Fuller brochure was being admitted for a limited purpose, and the court
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a. Evidence Code section 1280
i. Background
Near the beginning of trial, defendants submitted a “Memorandum Regarding
Admissibility of Scientific and Government Publications.” (Most capitalization omitted.)
This memorandum addressed potential exhibits described as “reports and surveys from
federal agencies and committees” and a single article from a medical journal. Defendants
asserted that these documents would not qualify for admission under Evidence Code section
1280 because they were “not limited to public employees’ records of an act, condition, or
event, nor were they written at or near the time of such an act, condition, or event.” They
also asserted that plaintiff’s experts could not testify about the contents of these documents
other than to say that they had relied on them.
The trial court did not view this memorandum as an objection to anything: “It is not
framed as a motion. It is not framed as an objection to testimony. I wasn’t clear what it
was supposed to be other than trying to educate me about some legal principles.”
Defendants explained that they were providing “our explanation for those objections in
advance,” and they then objected on hearsay and relevance grounds to plaintiff’s expert
historian Mushak “reading from and potentially offering” “scientific journals and
confirmed that it was. He made no objection. Hence, defendants did not preserve a hearsay
objection to this testimony.
Defendants cite a written objection that ConAgra filed, objecting to any testimony by
plaintiff’s expert historian Rosner that Fuller’s promotion of lead paint had “caused” lead
paint to be present on residences in the 10 jurisdictions. It claimed that Rosner was not
qualified to offer such testimony and lacked any reliable basis for such testimony. These
written objections did not interject any hearsay objections or relate to the contentions that
defendants make on appeal. Defendants cite a defense objection, not on hearsay grounds, to
the admission of an exhibit regarding ConAgra’s liability as the successor to Fuller. And
they cite ConAgra’s objection on “no foundation and Evidence Code sections 802 and 803”
grounds to any testimony by plaintiff’s expert Markowitz that Fuller had knowledge of the
dangers of lead when it was promoting it. Although the court overruled these objections,
there is no apparent relationship between that ruling and defendants’ evidentiary contentions
on appeal.
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government reports.” The court noted that Mushak was testifying as an expert and therefore
could rely on inadmissible hearsay to support his opinion testimony. It also observed that
“reports and analysis” that were not admitted for their truth but solely to allow the court to
evaluate the expert’s testimony could be received into evidence. The court ruled that
“expert witnesses testifying in this case as a general matter can rely on reports, information,
which might otherwise be designated inadmissible as hearsay.”
Defendants clarified that their objection was to the admission of the documents, not
the expert’s reliance on hearsay. The trial court reiterated that any hearsay documents relied
on by the experts would not be admitted for their truth but only to evaluate the expert’s
testimony. The court subsequently ruled: “First of all, if the documents that are being
proffered are the product of a public agency, they will be admitted as an exception to the
hearsay rule under Evidence Code Section 1280. That’s a general proposition I don’t think
anyone can argue with. Experts who are testifying and who are relying on reports, analysis,
and so forth, not prepared by themselves but, say, statistical analysis or something like that,
those materials can come into evidence for a limited purpose to assist the Court in
evaluating the expert’s opinion.” No defendant challenged at that time the court’s statement
that “documents that . . . are the product of a public agency” are admissible under Evidence
Code section 1280.
Defendants subsequently objected on hearsay grounds to the admission of a 2012
“monograph” prepared by the National Institutes of Health (NIH) addressing the health
effects of low-level lead exposure. This monograph was introduced during the testimony of
one of the experts who had helped write it. The court ruled that this document was
admissible under Evidence Code section 1280. Defendants also objected on hearsay
grounds to the admission of a Mineral Resources Yearbook for the year 1922 that had been
prepared and published by the United States Department of the Interior in 1925. This
document contained statistics for the production and consumption of lead in the United
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States from 1917 to 1922 and a list of the companies that were producing white lead in
1922, which included Fuller, NL, and SWC.
ii. Analysis
“Evidence of a writing made as a record of an act, condition, or event is not made
inadmissible by the hearsay rule when offered in any civil or criminal proceeding to prove
the act, condition, or event if all of the following applies: [¶] (a) The writing was made by
and within the scope of duty of a public employee. [¶] (b) The writing was made at or near
the time of the act, condition, or event. [¶] (c) The sources of information and method and
time of preparation were such as to indicate its trustworthiness.” (Evid. Code, § 1280.) “A
trial court has broad discretion in determining whether a party has established these
foundational requirements. [Citation.] Its ruling on admissibility ‘implies whatever finding
of fact is prerequisite thereto . . . . [Citation.]’ [Citation.] A reviewing court may overturn
the trial court’s exercise of discretion ‘ “only upon a clear showing of abuse.” ’ ” (People v.
Martinez (2000) 22 Cal. 4th 106, 120.)
We can see no abuse of discretion in the trial court’s finding that the monograph and
the mineral yearbook fell within the parameters of Evidence Code section 1280. Both of
these documents demonstrated on their face that they had been prepared by public
employees in the scope of their employment. The monograph described an NIH study that
had been recently completed and had been extensively peer reviewed, so the trial court
could have reasonably concluded that it was a writing made “at or near” the time of the
study and had been prepared using sources and methods that were trustworthy. The mineral
yearbook was prepared by the Department of the Interior to report on mineral production
and consumption during what were no doubt the most recent years for which it had
information. The trial court could reasonably conclude that the Department of the Interior
used trustworthy sources to compile this information.
Defendants do not argue the Evidence Code section 1280 issue as to any other
exhibits except for a summary reference in a footnote to exhibits 8, 17, 19, and 253 as
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examples of documents that were admitted into evidence by the trial court over hearsay
objections under Evidence Code section 1280. Defendants provide no further detail about
these four exhibits, and they do not even provide record citations for the exhibits themselves
or the rulings on their admission. Instead, they support their claim that these four exhibits
were admitted into evidence over hearsay objections with a citation to the court’s general
unchallenged ruling that “documents that . . . are the product of a public agency” would be
admissible under Evidence Code section 1280.
Despite defendants’ inadequate briefing, we briefly consider the propriety of the
admission of these four exhibits. Exhibit 8 is a transcript of a 1910 hearing before a
Congressional committee. When it was admitted into evidence, the only defense objection
was “[c]ontinuing objections,” which the court overruled while citing Evidence Code
section 1280. Defendants made no express hearsay objection to the admission of this
exhibit, and they submit no argument on appeal as to why this official transcript of a
legislative hearing was not admissible under Evidence Code section 1280. In any case, we
can see no abuse of discretion in the court’s determination that this official transcript was
admissible under Evidence Code section 1280. Exhibit 17 is a 2013 CDC “Weekly
Report,” and one of plaintiff’s experts testified that the CDC published such reports every
week. Exhibit 19 is a 2010 World Health Organization (WHO) booklet on childhood lead
poisoning that was prepared in part by one of plaintiff’s expert witnesses. When these two
exhibits were admitted into evidence, the defense objected “under 1280 because it is not a
record of an act, condition, or event.” The court overruled the objections. Again,
defendants do not detail on appeal why these exhibits did not qualify for admission under
Evidence Code section 1280. However, we can discern no abuse of discretion in the trial
court’s overruling of the objection. Both exhibits appear to be timely official records of
conditions.
Exhibit 253 is a resolution of the Santa Clara County Board of Supervisors declaring
National Childhood Lead Poisoning Prevention Week in 2012. When this document was
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mentioned by a witness at trial, the defense objected on “foundation” grounds and because it
was “unsigned.” Although the court admitted the document “for all purposes,” it also said
that it would “take it in for whatever it is worth” as a “resolution of the Board of
Supervisors.” The only testimony about this document was that it showed that “[t]he Board
is basically recognizing that childhood lead poisoning is a significant health issue in Santa
Clara County . . . .” This was not a disputed issue. Defendant makes no argument on
appeal about how it could have been prejudiced by the admission of this document, and it is
inconceivable that this document was considered for the truth of any of its recitals. Any
error in admitting it “for all purposes” was not prejudicial.
b. Expert Testimony Based on Hearsay Documents Not Admitted At Trial
Defendants contend that the trial court erred in permitting experts to testify “based on
hearsay documents that were described at trial but which were, in many instances, never
admitted into evidence.” With one exception, none of the record citations that defendants
provide to support this contention contains any objection to expert testimony about hearsay
documents that were not admitted into evidence. Instead, the record citations they provide
in support of this contention are to testimony based on documents that were admitted into
evidence.
The one exception is the following exchange: “Q [by plaintiff’s trial counsel].
Okay. And, Dr. Markowitz, we have only touched on a handful of documents from either
the Lead Industries Association or the National Paint, Varnish, and Lacquer Association
here. Are these documents representative of other types of documents that you have seen in
your much more extensive research and review of hundreds of thousands of pages of
documents? [¶] MR. GLYNN [DuPont’s trial counsel]: I think that’s improper to now
bring in a host of undisclosed and undescribed documents. He can testify as to what he has
brought to court, not something -- [¶] THE COURT: I get it. You can shorten the
objection. The objection is overruled. It is what it is.” Markowitz responded: “Yes.
These are representative of many other documents.” Defendants provide in support of this
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argument no other record citation to any instance of an overruled defense objection to an
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expert testifying about an unadmitted document. As the trial court’s alleged error in
overruling this objection resulted only in Markowitz’s response to this one question, which
was not prejudicial, we reject this contention.
c. Permitting Experts to Read Limited Purpose Hearsay Documents Into Record
Defendants assert that the court prejudicially erred in permitting experts to read into
the record hearsay in documents that had been admitted for a limited purpose. The string of
record citations that defendants provide to support this assertion, which they make without
substantive analysis, primarily demonstrates that the court expressly ruled that the hearsay
in these documents was being admitted only for a limited purpose. Defendants’ objections
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were primarily limited to hearsay objections to the documents themselves.
However, defendants did make a relevant objection at one point. The defense
objected on hearsay grounds to the admission of 1937 and 1939 LIA and NPVLA
documents and a 1930 newspaper article referenced in the LIA documents. The court
admitted these documents for the limited purpose of evaluating the expert’s opinion
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We do note one other similar occurrence. “Q [by plaintiff’s trial counsel]. Were
these opinions informed by other documents that you reviewed in [the] historical record?
[¶] A [by plaintiff’s expert Rosner]. Yes, certainly. [¶] Q. And are the documents you
presented to the Court as the basis of your expert opinion, representations of what you have
seen in other documents as well? [¶] A. Yes. [¶] MR. STERN [ARCO’s trial counsel]:
Objection, your Honor. Without specific discussion of those documents. [¶] THE
COURT: Overruled. [¶] THE WITNESS: Yes.” The trial court’s alleged error in
overruling this objection also was not prejudicial.
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For instance, the defense objected, apparently on hearsay grounds, to the admission
of an 1878 medical journal article, and the court ruled that the evidence would be admitted
for the limited purpose of evaluating the expert’s opinion. In response to plaintiff’s
argument for unlimited admission, the court held open the possibility that this article might
be admissible to show “notice” if plaintiff produced evidence that a defendant was aware of
it. ConAgra objected on hearsay grounds to the admission of a 1919 newspaper article
about Fuller’s South San Francisco plant. The court ruled that the article was admissible for
a limited purpose.
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testimony, and it permitted the defense to enter a “continuing objection to purported opinion
testimony that is based solely on information gleaned from the four corners of the document
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being referred to.” Plaintiff’s experts thereafter referenced specific portions of these
documents in their testimony.
“If statements related by experts as bases for their opinions are not admitted for their
truth, they are not hearsay.” (People v. Sanchez, supra, 63 Cal.4th at p. 681.) “When an
expert relies on hearsay to provide case-specific facts, considers the statements as true, and
relates them to the [factfinder] as a reliable basis for the expert’s opinion, it cannot logically
be asserted that the hearsay content is not offered for its truth.” (Id. at p. 682.) “When an
expert is not testifying in the form of a proper hypothetical question and no other evidence
of the case-specific facts presented has or will be admitted, there is no denying that such
facts are being considered by the expert, and offered to the [factfinder], as true.” (Id. at
p. 684.) “If an expert testifies to case-specific out-of-court statements to explain the bases
for his opinion, those statements are necessarily considered by the jury for their truth, thus
rendering them hearsay. Like any other hearsay evidence, it must be properly admitted
through an applicable hearsay exception.” (Ibid.) “What an expert cannot do is relate as
true case-specific facts asserted in hearsay statements, unless they are independently proven
by competent evidence or are covered by a hearsay exception.” (Id. at p. 686.)
The trial court did not err in permitting the experts to testify about the specific
statements in these documents that supported their opinions. First, the record does not
establish that these documents were not within a hearsay exception. As plaintiff established
below, these documents were more than 30 years old. “Evidence of a statement is not made
inadmissible by the hearsay rule if the statement is contained in a writing more than 30
years old and the statement has been since generally acted upon as true by persons having
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There is no indication that the trial court or the parties viewed this “continuing
objection” as applying to documents other than the LIA and NPVLA documents and the
1930 newspaper article.
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an interest in the matter.” (Evid. Code, § 1331.) “Ancient documents would have no effect
or potency as evidence unless they served to import verity to the facts written therein. The
true rule is that an ancient document is admitted in evidence as proof of the facts recited
therein, provided the writer would have been competent to testify as to such facts.”
(Kirkpatrick v. Tapo Oil Co. (1956) 144 Cal. App. 2d 404, 411.) Since the authors of the
LIA and NPVLA documents and the writer of the newspaper article would likely have been
competent to testify to the contents of these writings, and the members of the LIA and the
NPVLA would have acted upon the statements in these documents being true, defendants
have not established that these documents were inadmissible hearsay.
Second, the experts were not necessarily relying on the truth of the statements in
these documents since their relevance was primarily to show what defendants were aware of
at the relevant time. Finally, the trial court, which admitted these documents for a limited
purpose, was well aware of the nature of the limited admissibility of these documents and,
unlike lay jurors, able to distinguish between the use of the contents for their truth and the
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use of the documents as a basis for an expert’s opinion. We find no prejudicial error in the
court’s rulings with regard to the experts’ references to these documents.
d. Reliance on Hearsay in Limited Purpose Documents
Defendants argue that the trial court prejudicially erred in considering for its truth
hearsay in documents that had been admitted only for a limited purpose. Defendants have
forfeited this contention because they fail to cite any indication in the record that the trial
court relied on a limited purpose exhibit for the truth of its assertions. The only exhibits
they expressly reference are exhibits 18 and 19, which were admitted for all purposes under
Evidence Code section 1280 and therefore were not limited purpose documents.
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The court stated early on: “[T]hese matters, these reports, analyses, whatever they
might be, if they are hearsay are not admitted for the truth of the matter asserted, but they
are admitted for the limited purpose to assist me in evaluating the expert’s opinion.”
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2. Disallowance of Recross
Defendants contend that the trial court prejudicially erred in ruling that there would
be no recross-examination during the trial.
a. Background
After redirect of the first trial witness, one of the defense attorneys asked to recross.
The court said: “No. No. One round. Direct, cross, redirect. That’s it.” After plaintiff’s
expert Rosner testified on redirect, trial counsel for ARCO and DuPont requested recross.
The court denied the request. ConAgra’s trial counsel objected to the denial of recross. “If
the Court please, I too would like to do a brief recross-examination. May I please have a
continuing objection to the denial of rights under 772 as to any witness where I actually
participated in the cross-examination at issue.” The court allowed him a continuing
objection and overruled his objection. SWC’s trial counsel joined ConAgra’s objection
NL’s trial counsel did not join.
After redirect of plaintiff’s expert industrial hygienist Gottesfeld, who had testified
about lead inspections and lead assessments, SWC’s trial counsel moved to “strike the
redirect testimony in light of the denial of recross.” The court denied the motion. It stated:
“I think the Court has the discretion to alter the order of this. You might want to take a look
at Evidence Code Section 320. There is some case law about that as well. In any event, I
think I am within my province to do that.”
After plaintiff’s witness Courtney testified on redirect, SWC’s attorney asked to be
permitted to “ask two questions as my redirect,” but the court denied the request. SWC had
done its direct exam as its cross to save time.
During redirect of plaintiff’s expert Markowitz, plaintiff introduced additional
exhibits. SWC’s trial counsel objected: “[W]ith no chance to cross-examination [sic], they
chose to proceed by summary. If they botched it, they shouldn’t be able to drop this on us
after cross. Your Honor, I object. If they are allowed, I would like an opportunity to study
them and have this witness subject to recall so I can cross-examine them fairly and deal
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with them later. That’s my objection.” The court overruled the objection. After
Markowitz’s redirect, DuPont’s trial counsel asked the court if it would “permit brief
recross.” The court said “No.” No other attorney sought recross of Markowitz.
After redirect of plaintiff’s final expert witness, SWC’s trial counsel said: “I am
assuming that your Honor’s standing rule of no recross applies, and we don’t have to ask for
recross each time?” The court said: “That is correct.” SWC’s trial counsel then sought to
strike the witness’s testimony about an article because he would not have the opportunity to
ask about it on recross. His request was denied.
At the close of plaintiff’s case, SWC’s trial counsel moved “to strike the testimony
on redirect for all of the witnesses on the ground we were not permitted recross.” The
motion was denied.
b. Analysis
Defendants claim that the trial court’s disallowance of all recross throughout the trial
was an arbitrary ruling that cannot be upheld as an exercise of discretion because it allowed
plaintiff to present evidence on redirect that defendants had no opportunity to confront.
“A witness examined by one party may be cross-examined upon any matter within
the scope of the direct examination by each other party to the action in such order as the
court directs.” (Evid. Code, § 773, subd. (a).) “ ‘Recross-examination’ is an examination of
a witness by a cross-examiner subsequent to a redirect examination of the witness.” (Evid.
Code, § 763.) “The examination of a witness shall proceed in the following phases: direct
examination, cross-examination, redirect examination, recross-examination, and continuing
thereafter by redirect and recross-examination.” (Evid. Code, § 772, subd. (a).)
Defendants contend that Evidence Code sections 772 and 763 create a right to
recross. Neither statute creates any rights. Evidence Code section 763 merely defines
recross, and Evidence Code section 772 simply identifies the order in which the various
phases of witness examination, including recross, may occur. If defendants’ contention
were accurate, Evidence Code section 772’s mention of re-redirect and re-recross would
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create a right to those uncommon phases of witness examination. Defendants cite no
authority for the proposition that Evidence Code section 772 has ever been construed to
create a right to every possible phase of witness examination.
Defendants cite an appellate court decision from Illinois for the proposition that a
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blanket prohibition on recross is never permissible. In Grundy County Nat. Bank v. Myre
(1975) 34 Ill.App.3d 287 (Grundy), a bank brought an action to collect from a farmer on an
accounts receivable that had been assigned to the bank by a farm supply company. (Ibid.)
The farmer claimed that the account was overstated by $18,500, which was attributable to a
note that the farm supply company had assigned to one of its suppliers and the farmer had
paid off. The trial court rejected the farmer’s claim that the account was overstated and
awarded the bank over $30,000. On appeal, the farmer contended that the trial court had
prejudicially erred in refusing to allow him recross of one of the bank’s witnesses. (Grundy,
at pp. 287-288.) On direct exam, the witness acknowledged that $18,500 for a carload of a
particular type of fertilizer was supposed to be billed to the farmer by the supplier and was
the subject of the note. On cross, the witness admitted that he could not tell if that fertilizer
had instead been charged to the farmer’s account by the supply company and said that the
fertilizer was just part of the goods covered by the $18,500 note. On redirect, the witness
testified that one of the ledger cards for the farmer’s account showed no fertilizer purchases
that could have amounted to a carload or to $18,500. The farmer was denied the
opportunity for recross. In fact, another ledger card in evidence at the trial showed that
more than $20,000 had been charged to the farmer’s account for a carload of that particular
type of fertilizer. (Grundy, at pp. 288-289.) Under these circumstances, the Illinois
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Defendants’ reliance on a federal Confrontation Clause case is misplaced as the
Confrontation Clause does not apply in civil cases. (United States v. Baker (9th Cir. 1993)
10 F.3d 1374, 1404 [Confrontation Clause permits recross to be barred except where “new
matter” was introduced on redirect], overruled on a different point in United States v
Nordby (9th Cir. 2000) 225 F.3d 1053, 1059.) The remainder of the cases defendants cite
are irrelevant because they concerned the right to cross-examination, not the right to recross.
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appellate court held that, “[s]ince new matter had been brought out on redirect, and since the
refusal to permit recross was clearly prejudicial to defendant’s case, the ruling amounted to
reversible error.” (Grundy, at p. 290.)
Grundy is readily distinguishable. Here, unlike in Grundy, the trial court announced
at the beginning of the trial that there would be no recross permitted throughout the trial.
By making this ruling at the outset, the trial court let trial counsel know that it was their job
to avoid the need for recross by objecting to any redirect that exceeded the scope of cross.
The scope of direct operates as a limit on cross, and the scope of cross in turn limits
redirect. Even without an opportunity for recross, the cross examiner has a full opportunity
to address everything that the direct examiner has addressed on direct, and any redirect
cannot properly delve into new subject matter. In fact, trial counsel for the defense actively
interposed objections to the scope of redirect. Some of those objections were sustained, and
others were overruled, but defendants do not contend on appeal that the trial court
prejudicially erred in overruling their specific beyond-the-scope objections.
We can see no abuse of discretion in a trial court’s decision that a particular court
trial should be conducted without recross. In a court trial, the trial court, as the factfinder,
can discern whether the material to be presented is of a type that does not merit repetitive
examination of witnesses. In this case, with half a dozen litigants, more than a dozen trial
attorneys, and predominantly expert witnesses who had been heavily deposed in advance of
trial, the trial court could have reasonably concluded that repetitive witness examination
would be unduly burdensome and unproductive. Requiring trial counsel to police the scope
of redirect so as to avoid the need for recross was a reasonable choice for the trial court to
make in this case to avoid an undue consumption of the court’s time and resources. The
court did not abuse its discretion in prohibiting recross at this trial.
3. Time Limits
Defendants challenge the trial court’s imposition of time limits and rejection of their
posttrial deposition designations and offers of proof.
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a. Background
The parties initially estimated that the trial would last two months. Two months
before trial, the court told the parties that it would allow each side 30 hours to present its
case. Defendants objected to this time limit. The court clarified that this limit applied only
to “witness time” and that a party could seek more time if it could provide a “specific
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justification.” The court told the parties that it anticipated that the case would be tried
over a one-month period. The parties were ordered “to exchange exhibit lists and the
content and expected testimony time of each witness” and to provide to the court “a list of
proposed exhibits that are actually intended to be used and witnesses (including a brief
summary of testimony and realistic time estimates) . . . .”
On June 24, 2013, three weeks before trial, the court went over the lists of witnesses
and time estimates that the parties had provided. Plaintiff’s time estimate was within the
court’s 30-hour allotment. The defense estimated that it would need 64.25 hours to present
its case. The court was not satisfied. “The Defendants have to get the number down from
the amount of time that they have stated. I am not going to pick a precise number. But to
get me above the 30 hours is going to take a lot, a lot, to get over that. And just a list of
names is not going to do it.”
On July 8, 2013, a week before trial, the court informed the parties that, “within
reason,” deposition testimony would not be counted against the 30-hour limit because the
court could read deposition testimony “a lot quicker, obviously, than having somebody on
the witness stand testifying.” However, the court would count deposition testimony against
the limit “if it gets to be excessive . . . .” The court had reviewed the parties’ revised
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The court said: “[T]he time allocation refers to witness time and does not include
opening statements (if any), pretrial and other motions, closing argument, and other
procedural matters requiring Court time.”
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witness lists and exhibit lists, and, in the court’s view, these lists confirmed that “the 30-
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hour limit is correct.”
On the first day of trial, the court clarified that the time limit applied only to live
testimony. The court explained that, based on pretrial litigation, “it [is] obvious to me that
without specific limits for trial presentation this trial could easily divulge [sic] into a morass
of side issues and side arguments.” The court increased the time limit to 40 hours per side.
It then overruled the defense objections to the time limits.
After plaintiff’s expert epidemiologist Lanphear testified, SWC’s trial counsel asked
to submit an offer of proof of what additional questions he would have asked if he had not
been subject to the time limits. The court acceded to his request to “file something” later.
During the defense case, while the defense still had eight hours of time remaining, SWC
requested additional time. The court rejected that request. Near the end of the defense case,
the defense asked the court to allow it an additional hour to present a witness on abatement.
The court agreed to “be flexible about that, within limits.” The court did not interrupt the
lengthy testimony by the defense abatement expert. After his testimony, the defense rested
without requesting additional time.
When plaintiff presented its first rebuttal witness, the defense asked for 15 minutes to
cross-examine him. The court granted this request. The defense completed its cross
without being interrupted. After plaintiff’s second rebuttal witness testified, the court
offered the defense the opportunity to cross-examine the witness, but the defense declined.
The defense freely cross-examined plaintiff’s third rebuttal witness without interruption.
The trial actually consumed 24 court days. After trial, defendants delivered to the
court 47 binders of proposed deposition designations for 46 witnesses to supplement the
trial record. The court rejected 25 of the 47 binders, but it permitted 22 of the binders (for
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The court also informed the parties that the defense would have 30 minutes for each
defendant for opening statement, but plaintiff would be limited to a single 30-minute
opening statement for all 10 jurisdictions.
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21 witnesses) to be admitted into evidence. The court subsequently rejected defendants’
request for reconsideration of this ruling.
b. Analysis
Defendants complain that the trial court prejudicially erred in imposing
“unreasonable time limits” on their examination of witnesses at trial and rejecting their
efforts to use deposition designations and offers of proof to present evidence outside of
those time limits.
Defendants appear to believe that Evidence Code section 351 precluded the trial
court from limiting the amount of time they could use for their evidentiary presentation.
This statute provides: “Except as otherwise provided by statute, all relevant evidence is
admissible.” The fact that relevant evidence is admissible does not mean that a trial court
may not restrict a party from making an unduly time-consuming presentation of its
evidence.
We review the trial court’s imposition of time limits for abuse of discretion.
(California Crane School, Inc. v. National Com. for Certification of Crane Operators
(2014) 226 Cal. App. 4th 12, 23 (Crane).) In Crane, the Fifth District Court of Appeal
considered the merits of court-imposed time limits for a civil trial. We set forth the Fifth
District’s analysis at some length because it cogently refutes defendants’ contention that
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time limits are forbidden.
“Some litigants are of the mistaken opinion that when they are assigned to a court for
trial they have camping rights. This view presumes that the trial judge must defer to the
lawyers’ time estimates for the conduct of the trial such that, for example, when examining
witnesses, unless a valid objection is made by one’s opponent, a party is entitled to take
whatever time it believes necessary to question each witness. This view is not only contrary
71
Defendants do not acknowledge the existence of Crane despite the fact that the
Crane opinion was published in May 2014, well before any of the briefs were filed in this
case (beginning in September 2014), and plaintiff cited Crane in its appellate brief.
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to law but undermines a trial judge’s obligation to be protective of the court’s time and
resources as well as the time and interests of trial witnesses, jurors and other litigants
waiting in line to have their cases assigned to a courtroom. [Fn. omitted.] The Evidence
Code expressly empowers trial judges to limit the presentation of evidence, even evidence
that is relevant and probative. Evidence Code section 352 authorizes the court to exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will necessitate undue consumption of time. Evidence Code section 765,
subdivision (a) provides that the court shall exercise control over the mode of interrogation
of witnesses ‘so as to make interrogation as rapid, as distinct, and as effective for the
ascertainment of truth.’ Both statutes describe powers that the court may exercise on its
own initiative. [¶] It is incumbent upon trial judges to manage trials efficiently. Efficiency
is not necessarily measured by comparing the actual length of a trial with the parties’
original time estimate because parties often overestimate or underestimate a trial’s length.
Judges need to be proactive from the start in both assessing what a reasonable trial time
estimate is and in monitoring the trial’s progress so that the case proceeds smoothly without
delay. . . . Trial time management is an ongoing responsibility of the trial judge, regardless
of the case’s complexity, the number of witnesses called or whether specific time limits
have been imposed. [¶] . . . [¶]
“For those cases in which the trial judge believes time limits should be set, the court
should first elicit estimates from the parties and invite each side to comment on the other’s
estimate. Once the parties have presented their views, the court should independently
evaluate the estimates based on the arguments of the parties, the state of the pleadings, the
legal and factual issues presented, the number of witnesses likely to testify, the court’s trial
schedule and hours, and the court’s experience in trying similar cases. [¶] . . . [¶]
“There are advantages to specifying time limits in court hours rather than court days.
An hour time limit imposed on one side would include all time that party spends in
examining its own witnesses (direct and redirect) as well as time spent in examining the
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adverse party’s witnesses (cross and recross). It would include the time spent in delivering
an opening statement and final argument. As contrasted with a time limit expressed in court
days, an hour limit, as described, is not diminished by matters beyond the party’s control,
such as the amount of time an opponent uses to cross-examine said party’s
witnesses. . . . The parties are entitled to be kept advised on a regular basis and upon
request of how much time each side has used and has remaining. [Fn. omitted.]
“. . . [A]ny time limit order should be reasonable, mindful that each party is entitled
to a full and fair opportunity to present its case. Trials are a dynamic process without the
benefit of a dress rehearsal, which makes forecasting the length of a trial less than precise.
But for those parties and attorneys who are fully prepared for trial and do not waste time
with repetitive questioning, cumulative evidence, not having witnesses available, or not
having documentary evidence organized and easily accessible, a trial’s length is not an
issue. Thus, despite the vagaries of trial, when all parties try a case diligently, there is no
reason for time limits. In all other cases, time limits will provide incentive to be diligent.
[¶] Any limits imposed should be subject to revision (upward or downward) for good cause
shown either on a party’s or the court’s own motion. . . . [¶] Not all cases are suitable for
the imposition of time limits. More often it is sufficient if the trial judge manages the trial
in such a way that the trial proceeds efficiently without delays, repetition or dead time.
However, in those cases in which the trial court imposes time limits, it is also important that
those limits be enforced.” (Crane, supra, 226 Cal.App.4th at pp. 19-22.)
The Fifth District’s opinion in Crane provides an excellent explanation of how and
why a civil trial court may use time limits to ensure an efficient trial. In this case, the trial
court did precisely as the Fifth District later recommended. First, the trial court “elicit[ed]
[time] estimates from the parties.” Second, it “independently evaluate[d] the estimates
based on the arguments of the parties, the state of the pleadings, the legal and factual issues
presented, the number of witnesses likely to testify, the court’s trial schedule and hours, and
the court’s experience in trying [complex] cases.” (Crane, supra, 226 Cal.App.4th at p. 20.)
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Third, the court specified the time limits in court hours, which “provide[d] [the parties]
incentive to be diligent,” and “kept [the parties] advised on a regular basis . . . of how much
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time each side ha[d] used and ha[d] remaining.” (Crane, at p. 21.) Fourth, the court was
responsive to the need to revise its original time limit and to allow additional time at the end
of the trial when a showing was made that more time was necessary. Indeed, the trial court
went to great lengths to ensure that its “reasonable” time limits did not prevent any of the
parties from having “a full and fair opportunity to present its case.” (Ibid.)
Nor was there any abuse of discretion in the court’s ruling on defendants’ “mass of
binders” presented at the end of the trial. As the trial court observed, this avalanche of
“unreasonable and excessive” material was in direct violation of the court’s prior
“directives,” consisted primarily of “individuals who were not listed on the trial witness
lists,” and was consistent with defendants’ pattern of attempts “to skirt the time limits
imposed by the Court.” And even then the court exercised considerable patience with
defendants, sorting through this mass of material and admitting about half of these
deposition designations into evidence.
Under the circumstances, we can find no abuse of discretion in the trial court’s
imposition of time limits, enforcement of those time limits, and rejection of defendants’
attempt to undermine those limits by sneaking in additional evidence in the form of a
massive amount of deposition designations and offers of proof.
4. Lead Paint Rather than Lead Pigments
Defendants contend that the trial court deprived them of “fair notice” and a “fair
trial” and “violated due process by changing the product at issue after trial” from lead
“pigments” to lead “paint.”
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This is not a case like In re Marriage of Carlsson (2008) 163 Cal. App. 4th 281, in
which the trial judge abused its discretion by abruptly terminating the trial in the midst of a
party’s examination of a witness. (Id. at p. 289.)
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Defendants’ contention is frivolous. Since the outset of this case, it has been
unmistakably clear that the focus of plaintiff’s public nuisance cause of action was lead
paint. In Santa Clara I, in 2006, this court expressly identified plaintiff’s allegations as
asserting that defendants “promot[ed] lead paint for interior use even though defendants had
known for nearly a century that such a use of lead paint was hazardous to human beings.”
(Santa Clara I, supra, 137 Cal.App.4th at p. 306, italics added.) The California Supreme
Court recognized in Santa Clara II in 2010 that this was an action concerning “lead
paint . . . .” (Santa Clara II, supra, 50 Cal.4th at p. 43.) Plaintiff’s opening statement at the
2013 trial of this action again targeted “lead paint.” Even SWC’s fellow defendant NL
acknowledged in its opening statement that this action was about “Lead-based paint . . . .”
Notwithstanding the fact that it was well recognized years before trial that this case
was about lead paint, after plaintiff’s case-in-chief, SWC moved for judgment and argued to
the trial court that it was entitled to judgment because “this is a pigment case” rather than a
lead paint case. SWC claimed that this distinction was important because it could not be
liable for promotion of lead pigments since it made white lead carbonate pigment only for
use in its own paints and did not promote lead pigment to other paint manufacturers.
SWC’s view was that plaintiff had chosen not to base its case on promotion of lead paint to
consumers. Plaintiff responded: “To argue that promoting lead pigment on its own can
form the basis of liability, but that putting that lead pigment in paint and telling consumers
to use it specifically in a residence somehow insulates you from public nuisance liability is
just counterintuitive to the legal principles and to the evidence that’s here in this case.” The
court denied SWC’s motion.
SWC’s argument below and on appeal has no merit. SWC and its fellow defendants
have always known that this case was about lead paint. Neither plaintiff nor the court
“chang[ed] the product” in this case. This case was always about lead paint.
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5. RASSCLE Database
Defendants contend that the trial court erroneously “denied defendants a reasonable
opportunity to obtain and analyze the full RA[S]SCLE database before trial.” They claim
that, if they had had full access to the “RASSCLE data” further in advance of trial, that data
“would have refuted plaintiffs’ outdated, inapposite national studies” on the sources of
elevated BLLs that the trial court relied upon.
a. Background
“RASSCLE is an acronym for Response and Surveillance System for Childhood
Lead Exposure.” The RASSCLE databases were created by the CLPPB. RASSCLE II is “a
web-based system that is available in a number of the counties in the state” and contains
data from 2006 and thereafter. RASSCLE I was its predecessor. RASSCLE I was closed in
approximately 2009.
The “RASSCLE database . . . is a collection of the laboratory results of blood lead
level testing results from all of the commercial laboratories in California.” It is not random;
it simply collects all of the data from children who happen to be tested for lead in
California. California regulations require that all children receiving government assistance
be tested for lead at age one and age two. State regulations also require that children living
in pre-1978 housing with deteriorated paint or that has been recently renovated be tested for
lead. These regulations produce about 700,000 tests each year. However, many of the
high-risk children targeted by RASSCLE for testing do not get tested because testing occurs
only if a health provider orders a test. Kaiser members are overrepresented in RASSCLE
because Kaiser makes lead screening a priority. Only about 75 percent of the children
required to be tested are actually tested. The RASSCLE databases contain all cases where a
child tested at 10 mcg/dL or higher. Only about 30 percent of the children in the 10
jurisdictions are included in the two RASSCLE databases.
The defense conceded that RASSCLE I had been produced by all entities except
Monterey County. Monterey County was unable to access its RASSCLE I database because
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it did not know the password. When the court set the trial for July 15, 2013, the RASSCLE
II database was expected to be produced by the state by June 21, 24 days before the
beginning of trial. Defendants claimed that they needed the RASSCLE II data in order to
support their argument that the lead problem had been taken care of because BLLs had
fallen dramatically. They also claimed that the RASSCLE II data would show that the
current blood levels were due to other sources besides lead paint. Plaintiffs were willing to
stipulate that there had been a dramatic drop in BLLs.
Defendants received the complete RASSCLE II database on June 21, 2013, three
weeks before trial. They immediately provided it to their experts. Defendants told the trial
court that their experts estimated that they needed “eight to ten weeks to fully analyze” this
information. They sought a continuance of the trial, but the court denied their request. The
court expressed its belief that the data could be analyzed in a few days and queried: “What
are they using yellow pads and number 2 pencils? Come on. An abacus.”
During its opening statement on July 15, 2013, NL’s trial counsel told the court that
the defense was due to receive a report from its experts on the RASSCLE II database on
July 22, 2013. Defense witnesses did not begin testifying until August 15, 2013. A defense
expert witness testified on August 15 about his review of the RASSCLE data from 2007
through part of 2012. He testified that he had “go[ne] through the RASSCLE data in
detail . . . .”
b. Analysis
While defendants are less than clear about the precise nature of their contention, we
understand them to be arguing that the trial court abused its discretion by denying their
motion for a continuance of the trial to permit them more time to analyze the RASSCLE II
73
data that was provided to them three weeks before trial. “A trial court has great discretion
73
Our endeavor is made more difficult by defendants’ failure to cite any authority in
support of this contention other an irrelevant passage in the United States Supreme Court’s
opinion in Shelby County v. Holder (2013) __ U.S. __ [133 S. Ct. 2612] (Shelby). Shelby
116
in the disposition of an application for a continuance. Absent a clear abuse of discretion,
the court’s determination will not be disturbed.” (Estate of Smith (1973) 9 Cal. 3d 74, 81.)
Here, the trial court reasonably concluded that defendants did not need two entire months to
have their experts analyze the RASSCLE II data. The trial had not yet begun when the
experts received the RASSCLE II data, and the defense claim that analysis of this data
would take a minimum of eight weeks was subject to considerable doubt, particularly as the
defense had repeatedly sought to delay the trial. In fact, the defense experts were able to
analyze the data in less than one month after receiving it, and the defense did not put on any
witnesses until nearly two months after its experts received the RASSCLE II data. Under
these circumstances, we can find no abuse of discretion in the trial court’s denial of
defendants’ continuance motion.
6. Inspection of Properties
Defendants contend that the trial court’s “pre-trial rulings prohibiting discovery”
violated due process by “prevent[ing] defendants from mounting a defense to the condition
of the supposed nuisance properties or to their culpability at each.” They assert that the
court “refused to allow defendants to inspect and exonerate themselves at the claimed
nuisance properties” and “quashed defendants’ attempt to inspect the alleged nuisance
properties and to take discovery of property owners and the Jurisdiction’s decisionmakers.”
declared unconstitutional a section of the federal voting rights act that, in the court’s view,
selected jurisdictions for “preclearance” “based on 40-year-old facts having no logical
relation to the present day.” (Shelby, at p. 2629.) The court concluded that “[i]t would have
been irrational for Congress [in 2006] to distinguish between States in such a fundamental
way based on 40-year-old data, when today’s statistics tell an entirely different story.”
(Shelby, at pp. 2630-2631.) The point that defendants may be trying to make is that the
RASSCLE data would have updated prior studies. Of course this is not true. Because
RASSCLE data was not compiled in a random fashion and did not even include all of the
targeted population, it was not comparable to the data in the studies relied on by plaintiff.
In any case, since defendants actually had full access to all of the RASSCLE data in time
for their experts to fully analyze it before testifying at trial, defendants could not have been
prejudiced by the court’s refusal to further delay the trial.
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Less than a month before trial, defendants filed an ex parte motion seeking “to serve
inspection notices and notice depositions of landlords using the information disclosed in the
RASSCLE databases, case files, and other documents recently produced or to be produced
by plaintiffs and the State.” Defendants claimed that their motion should be granted
“because inspection of those addresses and depositions of landlords is necessary to gain
evidence on several important topics including (a) whether a paint containing white lead
pigment is even present, as plaintiffs assume to be the case but will not have proved; (b) the
condition of any such paint and the reasons therefor including the landlord’s violation of
California Health & Safety Code §§ 17920.10 and 17980 et seq., which require property-
owners to abate ‘lead hazards;’ (c) the cause of any EBLLs [(elevated BLLs)] including
alternative sources of lead in or around the residence; and (d) the effect of any remediation
on BLLs and the efficacy of remediation.” “This evidence will support defendants’ position
that, if there is any continuing problem at all, it is the result of poor maintenance, not mere
presence.” “Defendants recognize the practical limitations on the number of residences that
can be inspected and landlords who can be deposed, especially with the short time between
production of the case files and RASSCLE databases and the current trial date. Although
the precise properties that defendants seek to inspect will depend on completing review of
the recently, and to-be, produced documents, defendants have identified residences in San
Mateo with lead hazards that it appears were not remediated despite numerous orders from
the CLPPP to do so.” One of defendants’ attorneys declared that he had reviewed “case
files produced by plaintiffs,” some of which “identify residences in which it appears that
lead hazards were not remediated, despite numerous orders from the CLPPP to do so.” The
court denied this ex parte motion.
Defendants claim that the court’s “prohibition on discovery” amounted to a denial of
due process, but the sole authority that they cite in support of their contention regarding
inspection of properties is page 958 of the California Supreme Court’s opinion in
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal. 4th 953. Since defendants submit no
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argument connecting this citation to their contention, we are given no guidance as to what
74
this page of this case might have to do with defendants’ appellate contention. Rutherford
was a strict products liability action seeking damages for harm caused by asbestos. The
issue before the California Supreme Court was whether it was prejudicial error for the trial
court to give a causation instruction that shifted the burden on causation to the defendants.
The court held that the instruction was erroneous but not prejudicial. The page cited by
defendants is a portion of the introduction to the opinion. Our best guess is that defendants
are contending that they should have been permitted to attempt to disprove causation by
establishing that the lead paint at particular properties did not come from their products.
Yet their actual contention is that the court erred in denying their ex parte motion to
75
serve inspection notices on third parties. “The standard of review for discovery orders is
abuse of discretion.” (Avant! Corp. v. Superior Court (2000) 79 Cal. App. 4th 876, 881.)
Defendants cite no statutory or other authority for the court to grant an application to serve
inspection notices on third parties. “[A] party’s right to inspect documents or other physical
evidence in the possession or custody of the opposing party depends upon compliance with
the procedures set out in [Code of Civil Procedure] section 2031. On the other hand, there
are situations where documents can be obtained without the other party’s cooperation (for
example, under the Public Records Act or from a friendly third party or by hiring a trained
investigator or on the internet). . . . [P]roperty open to the public can be examined without
recourse to section 2031 . . . provided that the examination can be conducted in a lawful
fashion.” (Pullin v. Superior Court (2000) 81 Cal. App. 4th 1161, 1164-1165, italics added.)
Since defendants have identified no authority upon which the trial court could have based a
74
Like so many of defendants’ appellate contentions, this one is difficult to understand.
An appellate court should not be required to decipher the meaning of a contention that is not
separately headed in any opening brief and for which no relevant authority is identified.
75
We can find no indication in defendants’ appellate briefing that they are challenging
the court’s denial of their request to depose “landlords.”
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decision to grant their application to serve inspection notices on third parties, the trial court
did not abuse its discretion in denying the application.
7. Spoliation
Defendants claim that they were denied a fair trial because plaintiff’s “spoliation of
evidence” deprived them of evidence that was “important” to their defense.
Defendants identify in their opening brief only two items of “important” evidence
that they claim were destroyed by plaintiff. First, they assert that Monterey County
destroyed evidence when it changed a statement that had previously appeared on its Web
site acknowledging that most cases of elevated BLLs in that county were attributable not to
lead paint but to other sources. This statement was not destroyed evidence; evidence of the
removed statement came in at trial. Second, they assert that San Francisco destroyed
evidence because it did not retain lead test reports that did not detect a BLL of 5 mcg/dL or
higher. Although the lead test reports themselves were “shredded,” the evidence presented
at trial reflected that the results in those reports were reported to the state and were
contained in the state’s records. Hence, no “important” evidence was destroyed.
SWC’s reply brief suggests that two other types of evidence were destroyed.
Monterey County did not retain any prior e-mails that were not in existence in January
2009, and it was unable to provide access to its RASSCLE I database because the only
person who knew the password had died. The defense did not claim that there had been any
“intentional destruction . . . .” Monterey County’s failure to retain pre-2009 e-mails, while
unfortunate, does not suggest that any important evidence was destroyed. While the
RASSCLE I database was inaccessible, Monterey County provided its case files, and
defendants had the more recent RASSCLE II database available to them. We see no
indication that defendants were deprived of important evidence as the result of any
“spoliation” and thus no basis for their claim that they were thereby deprived of a fair trial.
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K. Appointment of Receiver
Defendants contend that their due process rights were violated because the trial court
appointed the CLPPB to serve as the receiver of the abatement funds without holding an
evidentiary hearing and in the absence of evidence that the CLPPB could qualify to serve as
a receiver.
“A receiver may be appointed by the court in which an action or proceeding is
pending, or by a judge thereof, . . . [a]fter judgment, to carry the judgment into effect.”
(Code Civ. Proc., § 564, subd. (b)(3).) “Code of Civil Procedure section 564, subdivision
(b)(3), gives trial courts the discretion to appoint receivers to carry judgments in abatement
proceedings into effect.” (City and County of San Francisco v. Daley (1993) 16
Cal. App. 4th 734, 744.) We review a trial court’s order appointing a receiver for abuse of
discretion. (Ibid.)
The appointment of a receiver to oversee the disbursement of the abatement funds in
this case was necessary. Defendants were required to deposit funds into “a specifically
designated, dedicated, and restricted abatement fund.” The funds in this account would be
“disbursed” by the receiver only in response to grant applications from the 10
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jurisdictions. To perform this function, the trial court ordered that the abatement fund
77
would be “administered by” the CLPPB “on behalf of the people . . . .” While the trial
court’s decision to appoint a receiver in this case was a necessity, not an abuse of discretion,
we agree with defendants that the record does not support the court’s selection of the
CLPPB to serve as the receiver in this case.
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The court provided that the receiver’s costs would be paid out of the abatement fund.
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The trial court’s order referred to the CLPPB sometimes as the “administrator” of the
fund and other times as the “receiver” of the fund. Since the parties assume that the CLPPB
was appointed to serve as a receiver, we assume the same.
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Defendants claim that the CLPPB cannot qualify to serve as a receiver because it is a
nonparty over which the court lacks jurisdiction, has not consented to act as a receiver, and
is not impartial due to its being a party-affiliated entity.
“No party, or attorney of a party, or person interested in an action . . . can be
78
appointed receiver therein without the written consent of the parties, filed with the clerk.”
(Code Civ. Proc., § 566.) “A receiver is an agent and officer of the court, and is under the
control and supervision of the court. [Citations.] The receiver is also a fiduciary who must
act for the benefit of all parties interested in the property.” (City of Chula Vista v. Gutierrez
(2012) 207 Cal. App. 4th 681, 685.) The receiver must be “neutral.” (Cal. Rules of Court,
rule 3.1179(a).)
Since the trial court held no evidentiary hearing regarding the CLPPB’s ability to
serve as receiver, the record contains no evidence that the CLPPB has consented to serve as
a receiver in this case or that it is sufficiently impartial to be deemed not “interested” in this
action so that it can serve as a receiver. On remand, we will direct the court to hold an
evidentiary hearing on the receiver issue.
L. SWC’s Cross-Claim
SWC maintains that the trial court erred in failing to issue a declaratory judgment in
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response to its cross-claim. SWC sought a declaration that “Intact Lead Paint” that is not
a “ ‘lead hazard’ ” under Health and Safety Code sections 17920.10 and 105251 “or in
violation of a valid existing ordinance is not a public nuisance.” It also sought a declaration
that owners of properties with “lead hazard[s]” are “solely responsible” for the creation and
78
The court’s abatement order provided that if the CLPPB was “unwilling or unable”
to administer the fund, the 10 jurisdictions “shall serve in this capacity.” That cannot be.
The 10 jurisdictions are not impartial nonparties and therefore cannot serve as receivers.
(Code of Civ. Proc., § 566.)
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SWC’s arguments on this issue simply incorporate its other contentions, which we
have already rejected.
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maintenance of “any public nuisance” and the abatement of any “lead hazard.” In sum,
SWC sought a declaration that intact lead paint could not be declared a public nuisance and
that defendants were not responsible for the creation or abatement of lead hazards. The trial
court rejected SWC’s cross-claim.
The declaratory judgment that SWC sought was diametrically opposed to the trial
court’s judgment in favor of plaintiff. The trial court’s statement of decision found that
even intact interior residential lead paint was a public nuisance if it was on friction surfaces.
The court also found that defendants were responsible for the creation and abatement of
lead-paint-based public nuisances in residential housing in the 10 jurisdictions. As we have
already determined, these findings are supported by substantial evidence. Because these
findings precluded SWC from obtaining its requested declaratory relief, the trial court did
not err in rejecting SWC’s cross-claim.
M. ConAgra’s Liability As Fuller’s Successor
ConAgra challenges the trial court’s determination that it was liable as the successor
to Fuller. It claims that substantial evidence does not support the trial court’s finding.
The trial court found that “ConAgra succeeded to Fuller’s liabilities as a result of a
series of corporate mergers and/or the express assumption of liabilities.” It ruled that “it is
fair and appropriate in this case to so hold and necessary to prevent an injustice.”
Our substantial evidence standard of review requires us to uphold the trial court’s
finding if “ ‘there is any substantial evidence contradicted or uncontradicted which will
support the finding of fact.’ ” (Foreman & Clark Corp. v. Fallon, supra, 3 Cal.3d at p. 881.)
The ordinary rule for determining “whether a corporation purchasing the principal
assets of another corporation assumes the other’s liabilities” is “that the purchaser does not
assume the seller’s liabilities unless (1) there is an express or implied agreement of
assumption, (2) the transaction amounts to a consolidation or merger of the two
corporations, (3) the purchasing corporation is a mere continuation of the seller, or (4) the
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transfer of assets to the purchaser is for the fraudulent purpose of escaping liability for the
seller’s debts.” (Ray v. Alad Corp. (1977) 19 Cal. 3d 22, 28, italics added (Ray).)
Plaintiff produced evidence at trial that ConAgra had succeeded to Fuller’s liabilities
as a result of a series of mergers and consolidations. This evidence showed that W.P. Fuller
& Co. (Fuller), a California corporation, merged into Hunt Foods and Industries, Inc.
(Hunt), a Delaware corporation, in 1962. After Fuller merged into Hunt, “it [(Fuller)] was
still the . . . [¶] . . . same operation.” In 1968, three Delaware corporations, including Hunt,
consolidated to become Norton Simon, Inc. (Norton Simon). In 1993, Norton Simon
merged with another company to become Beatrice Company, which then merged with and
into Hunt-Wesson, Inc. (Hunt-Wesson). In 1999, Hunt-Wesson changed its name to
ConAgra. Since all of these transactions were mergers or consolidations, plaintiff’s
evidence was sufficient to support the court’s finding that ConAgra succeeded to Fuller’s
liabilities.
ConAgra, relying on evidence it presented at trial, claims that the trial court could not
have credited plaintiff’s evidence that it succeeded to Fuller’s liabilities. ConAgra’s
argument disregards the fundamental rule that a trial court may reject even uncontradicted
evidence so long as it does not do so arbitrarily. (Hicks v. Reis (1943) 21 Cal. 2d 654, 659.)
The trial court could have reasonably concluded that the evidence upon which ConAgra
relies was not credible.
ConAgra relies on evidence it produced that, in 1964, a corporation called “W.P.
Fuller Paint Company” was incorporated. ConAgra asserts in its opening brief that “Hunt
established WPFPC as a wholly-owned subsidiary” and cites nine pages of the appendix.
Those nine pages consist of a “Certificate of Incorporation” for “W.P. Fuller Paint
Company.” The certificate contains no apparent reference to Hunt or to “W.P. Fuller Paint
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Company” being a subsidiary of Hunt. Hence, this evidence did not establish that “W.P.
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Fuller Paint Company” was a “wholly-owned subsidiary” of Hunt.
ConAgra claims that “undisputed evidence” establishes that all of Fuller’s liabilities
were transferred to “W.P. Fuller Paint Company” in 1967. It relies on a document that
purports to be minutes of a December 1964 “first meeting” of the board of directors of
“W.P. Fuller Paint Company.” ConAgra asserts in its opening brief that these minutes
“state WPFPC accepted Fuller’s paint business, including its liabilities.” These purported
minutes, which were of uncertain origin, state that, at this meeting, the chairman of the
board “stated Hunt Foods and Industries, Inc. had offered to transfer certain assets of W. P.
Fuller & Co., a Division of Hunt, subject to certain liabilities, to this Corporation in
exchange for Four Hundred Thousand (400,000) shares of common stock having a par value
of $5 each plus certain long and short-term notes.” The purported minutes also state that the
board passed a resolution “that this Corporation accept the proposal that Hunt Foods and
Industries, Inc., (‘Hunt’) transfer to this Corporation the inventories, rights, credits, good
will and other assets, other than certain fixed assets, consisting principally of certain lands,
buildings, machinery and equipment which have been mutually agreed upon, of the business
carried on by W. P. Fuller & Co., a Division of Hunt, subject to all of its liabilities.”
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ConAgra’s reliance on these purported 1964 minutes is misplaced. The purported
minutes, even if credited, would not establish that Hunt transferred “all of” Fuller’s
liabilities to “W.P. Fuller Paint Company.” At most, these purported minutes might
80
We note however that plaintiff does not dispute that Hunt created “W.P. Fuller Paint
Company.”
81
ConAgra also quotes extensively from an unpublished Delaware trial court opinion,
The O’Brien Corp. v. Hunt-Wesson, Inc. (Del. Ch., Feb. 25, 1999, No. CIV. A. 16562) 1999
WL 126996, which dismissed on ripeness grounds a complaint for declaratory relief that
had been filed by O’Brien against ConAgra’s predecessor. That action sought a declaration
that ConAgra’s predecessor, not O’Brien, was Fuller’s successor. O’Brien’s allegations in
its complaint in that action relied on the purported 1964 minutes. The Delaware trial court’s
dismissal of that action, which resolved no factual issues, is of no relevance here.
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demonstrate that Hunt had “offered to transfer certain assets” of Fuller “subject to certain
liabilities.” The nature of the “certain liabilities” that were purportedly part of Hunt’s offer
was not specified. While the purported minutes might show that “W.P. Fuller Paint
Company” resolved to accept this offer, the purported minutes do not enumerate all of the
terms of the Hunt offer, do not demonstrate that any acceptance was communicated to Hunt,
and do not establish that the two corporations ever actually consummated any contemplated
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transfer of any of Fuller’s assets or liabilities on any terms. The trial court could have
reasonably rejected the inferences that ConAgra attempts to draw from the purported
minutes.
ConAgra also claims in its appellate brief that, “[i]n 1967, Hunt sold Fuller’s paint
business to O’Brien.” ConAgra cites two pages from the appendix. One page is an excerpt
from deposition testimony of a former Fuller employee to the effect that he left Fuller in
1967 after “Norton Simon announced that he was putting the company up for sale.” Since
Norton-Simon was not created until 1968, the trial court could have reasonably rejected this
testimony. The other page is a 1967 newspaper article reporting that Hunt had announced
that it had sold “the business and assets” of “Fuller, a wholly owned subsidiary” to O’Brien.
The article states: “Specific details of the transaction weren’t disclosed.” Even if the article
were to be deemed credible, it would not establish that Hunt’s purported transaction with
O’Brien transferred Fuller’s liabilities to O’Brien.
Under Ray, the purchaser, here O’Brien, did not assume Fuller’s liabilities “unless
(1) there is an express or implied agreement of assumption, (2) the transaction amounts to a
consolidation or merger of the two corporations, (3) the purchasing corporation is a mere
continuation of the seller, or (4) the transfer of assets to the purchaser is for the fraudulent
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ConAgra also produced evidence that, in 1967, “W.P. Fuller Paint Company”
changed its name to “WPF, Inc.,” and in 1968, “WPF, Inc.” dissolved. We need not address
this evidence, as its relevance depends on the validity of the propositions that ConAgra
states in its brief but the trial court rejected.
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purpose of escaping liability for the seller’s debts.” (Ray, supra, 19 Cal.3d at p. 28.)
ConAgra produced no evidence of any of the four predicates that could have shown that
Hunt transferred Fuller’s liabilities to O’Brien. ConAgra suggests that the “product line
exception” to the Ray test applied, but it also failed to provide any evidentiary support for
the application of that exception, even if it were the case that this exception could be applied
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outside the strict products liability context in this public nuisance abatement action. (See
Franklin v. USX Corp. (2001) 87 Cal. App. 4th 615, 628 [describing the requirements for
product line exception and refusing to extend it beyond the strict liability context]; Monarch
Bay II v. Professional Service Industries, Inc. (1999) 75 Cal. App. 4th 1213, 1217 [limiting
product line exception to strict liability actions].)
The trial court was not obligated to credit the truth of the assertions in the purported
1964 minutes or in the 1967 newspaper article. Since plaintiff’s evidence supports the
court’s finding that Fuller’s liabilities flowed from Hunt to Norton-Simon and through it to
ConAgra, we must uphold the court’s finding that ConAgra was Fuller’s successor.
V. Lead Paint Cases From Other Jurisdictions
Defendants repeatedly cite four cases from other jurisdictions in which courts
rejected public nuisance actions against lead paint and lead pigment manufacturers.
City of Chicago v. American Cyanamid Co., supra, 355 Ill.App.3d 209 (Chicago)
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was a public nuisance action seeking abatement by Chicago against the manufacturers and
distributors of lead pigments and lead paint. (Id. at pp. 210-211.) Chicago appealed after
the action was dismissed for failing to state a claim. (Id. at pp. 211-212.) The Appellate
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ConAgra’s reliance on SCM Corp. v. Berkel, Inc. (1977) 73 Cal. App. 3d 49 is
misplaced. That declaratory relief action was tried on stipulated facts and joint exhibits.
(Id. at p. 52.)
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Chicago’s action originally sought damages, but on appeal Chicago contended only
that it should have been able to seek abatement and punitive damages. (Chicago, supra,
355 Ill.App.3d at pp. 211-212.)
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Court of Illinois upheld the dismissal on the ground that Chicago had failed to adequately
allege “proximate cause” because Chicago could not identify any specific defendant as the
source of the lead pigment or lead paint at any particular location. (Id. at p. 216.) The court
rejected Chicago’s contention that the defendants were liable under a “market share” or
“collective liability” theory. It held that Illinois did not recognize either theory. (Id. at
pp. 217-218.) In addition, the court held that Chicago could not succeed because it had
failed to allege that the defendants controlled the property where the alleged nuisance was
located. (Id. at p. 221.)
City of St. Louis v. Benjamin Moore & Co. (Mo. 2007) 226 S.W.3d 110 (St. Louis)
was a public nuisance action brought by a city against lead paint distributors seeking to
recover “damages for assessing, abating, and remediating the nuisance.” (Id. at pp. 113,
116 [“private tort action” seeking “damages”].) The trial court granted summary judgment
to the defendants on the ground that the city could not prove causation without
identification of the lead manufacturer whose paint had been remediated. (Id. at p. 113.)
The Supreme Court of Missouri, relying on a case in which it had held that “market-share
liability” was contrary to Missouri law, held that “actual causation can be established only
by identifying the defendant who made or sold that product.” (Id. at p. 115.)
In re Lead Paint Litigation, supra, 191 N.J. 405 [924 A.2d 484] (New Jersey) was a
Supreme Court of New Jersey decision in a case where the trial court had dismissed for
failure to state a cause of action a “common law” public nuisance action brought by
municipalities against lead paint manufacturers. (Id. at p. 409.) The Supreme Court of New
Jersey noted that the New Jersey Legislature had declared interior residential lead paint to
be a public nuisance and assigned responsibility for it to the owners of the residences, not
paint manufacturers. (Id. at pp. 429, 432-433.) Relying on the Restatement, the court found
that only a tortfeasor “in control of the nuisance” could be held liable for public nuisance,
and the paint manufacturers lacked such control. (New Jersey, at pp. 425, 429, 433.) The
court also held that the action was barred because the municipalities sought damages, rather
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than abatement, and damages were not available in a public nuisance action to a public
entity plaintiff that had suffered no special injury. (Id. at pp. 435-436.) Finally, the court
held that, because the complaint sought to premise liability on a failure to warn, it
“sound[ed] in products liability” and could not be the basis for a public nuisance action.
(Id. at pp. 437-439.)
State v. Lead Industries Ass’n, Inc., supra, 951 A.2d 428 (Rhode Island) was a
Supreme Court of Rhode Island decision in a public nuisance action brought by the state in
which a trial court had ordered three former lead pigment manufacturers to abate lead paint.
The court held that the trial court should have dismissed the action for failing to state a
cause of action. (Id. at p. 452.) It found lacking any allegation that the defendants had
interfered with a public right and any allegation that the defendants controlled the lead
pigment. (Id. at p. 453.) “The interference must deprive all members of the community of a
right to some resource to which they otherwise are entitled. [Citation] The Restatement
(Second) provides much guidance in ascertaining the fine distinction between a public right
and an aggregation of private rights. ‘Conduct does not become a public nuisance merely
because it interferes with the use and enjoyment of land by a large number of persons.’ ”
(Id. at p. 453.) “[A] public right is a right of the public to shared resources such as air,
water, or public rights of way.” (Id. at p. 455.) The court also held, in reliance on New
Jersey, that the complaint was inadequate because it had failed to “allege any facts that
would support a conclusion that defendants were in control of the lead pigment at the time it
harmed Rhode Island’s children.” (Rhode Island, at p. 455.)
These cases are readily distinguishable from the case before us. None of the courts
in these other jurisdictions assessed the merits of a public nuisance action in light of the
voluminous evidence that was presented at the trial in this case. Only the Rhode Island case
had been tried, and the Supreme Court of Rhode Island considered only the pleadings. The
Chicago and New Jersey cases were dismissed at the pleading stage, and the St. Louis case
was dismissed on summary judgment. The evidence presented at the trial in this case
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proved the elements of a representative public nuisance action, which might not have been
apparent from the pleadings in the actions in these other jurisdictions. Only the Rhode
Island and Chicago cases were actions for abatement rather than damages. As we have
pointed out repeatedly, a representative public nuisance action seeking only remedial
abatement is legally distinct from an action for damages.
None of the reasons that the courts in these other jurisdictions provided for their
rejection of public nuisance liability applies to the case before us. The Chicago court relied
on “lack of control” and a restrictive Illinois causation definition. As this court pointed out
in Santa Clara I, a defendant’s control of the nuisance is not necessary to establish liability
in a representative public nuisance action in California. (Santa Clara I, supra, 137
Cal.App.4th at p. 306.) The Illinois causation test is not analogous to California’s
substantial factor test. St. Louis is similarly distinguishable because the court based its
analysis on a Missouri causation test that is not analogous to California’s substantial factor
test.
The New Jersey court’s analysis was based on lack of control, specific New Jersey
laws assigning responsibility solely to property owners, and its conclusion that the action,
which was for damages, “sound[ed]” in products liability rather than nuisance. Control is
not required in California for a public nuisance action (Santa Clara I, supra, 137
Cal.App.4th at p. 306), and California’s laws do not assign exclusive responsibility for lead
paint remediation to property owners. This court held in Santa Clara I that a representative
public nuisance action is not a disguised products liability action. “A public nuisance cause
of action is not premised on a defect in a product or a failure to warn but on affirmative
conduct that assisted in the creation of a hazardous condition. Here, the alleged basis for
defendants’ liability for the public nuisance created by lead paint is their affirmative
promotion of lead paint for interior use, not their mere manufacture and distribution of lead
paint or their failure to warn of its hazards. [¶] In contrast, a products liability action may
be brought only by one who has already suffered a physical injury to his or her person or
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property, and the plaintiff in a products liability action is limited to recovering damages for
such physical injuries.” (Santa Clara I, at pp. 309-310.)
The Rhode Island court’s decision was based on lack of control (which does not
apply in California) and lack of interference with a public right. We disagree with the
Rhode Island court’s conclusion that lead paint does not interfere with “shared resources”
(see section IV(B) of this opinion), and the Rhode Island court’s Restatement-based analysis
of the “public right” is not consistent with California’s broader statutory definition of a
public nuisance. (Rhode Island, supra, 951 A.2d at pp. 453, 455.)
We therefore reject defendants’ reliance on these cases from other jurisdictions.
VI. Amici Arguments
Seven amicus briefs have been filed in this case. Amici Civil Justice Association
(CJA), Pacific Legal Foundation (PLF), and NFIB Small Business Center et al. (NFIB) have
filed amicus briefs in support of defendants. Amici American Academy of Pediatrics,
California (AAPCA), the Environmental Health Coalition and the Healthy Homes
Collaborative (EHC), California Conference of Local Health Officers (CCLHO), and a
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group of organizations including Changelab, Consumer Attorneys of California and others
(Changelab) have filed amicus briefs in support of plaintiff.
A. CJA
CJA contends that we should reject the trial court’s judgment holding lead paint
manufacturers liable for creating a public nuisance because courts in other states have
rejected such actions and certain journal articles have criticized the extension of public
nuisance liability to such cases. California law is not based on the rulings of courts in other
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The others are Equal Justice Society, National Center for Healthy Housing,
Prevention Institute, and Public Health Institute.
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states, which are based on their laws and the facts of their cases, nor would be it appropriate
for us to reverse a judgment based on opinions expressed in journal articles. The trial court
properly applied California law, and, with one exception, substantial evidence supports its
abatement order.
CJA contends that this case should have been dismissed because it sought resolution
of a “non-justiciable political question,” but none of the cases it cites is remotely similar to
the one before us. CJA’s argument largely repeats the separation of powers arguments
made by defendants, which we have already rejected in section IV(C) of this opinion.
CJA challenges the trial court’s conclusion that a “public right” was at issue here.
We have already addressed that issue in section IV(B) of this opinion. CJA also challenges
the sufficiency of the evidence to support the trial court’s causation finding and claims that
the substantial factor test for causation does not properly encompass the cause-in-fact
requirement. The substantial factor test is the law in California. We have already fully
addressed the causation issue in section IV(A)(4) of this opinion.
B. PLF
PLF’s brief argues that application of public nuisance law in this case violates due
process and is against public policy. The premise for PLF’s due process contention is its
claim that defendants’ conduct “was lawful and non-tortious at the time the Defendants
engaged in it . . . .” This misunderstanding of the basis for the trial court’s judgment
permeates PLF’s brief, which makes a frontal assault on the constitutionality of California’s
public nuisance law. We reject PLF’s unfounded assertions. Defendants were found liable
because they promoted lead paint for interior residential use knowing that such use would
pose a serious risk of harm to children. This conduct was just as unlawful and tortious
when they engaged in it as it is now because the creation of a public nuisance has been
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unlawful in California since the 1800s. Consequently, the due process problem that PLF
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perceives does not exist in this case.
PLF fails to support its claim that the federal constitutional prohibition against
vagueness in criminal statutes applies to civil liability for creating a public nuisance. PLF
asserts: “Although most cases involving the ‘constitutional requirement of definiteness,’
[citation to criminal case], have dealt with criminal statutes, the requirement also applies to
nuisance law.” PLF goes on to cite as an “example” a criminal case in which a protester
was convicted of violating a noise ordinance. PLF then states that “[t]hese principles also
apply to civil laws.” It proceeds to cite cases involving challenges to statutes that prohibited
speech. PLF identifies no civil case not involving the suppression of speech in which a
court found that a public nuisance abatement action could not be brought because the statute
barring public nuisances was unconstitutionally vague. We reject PLF’s due process
argument as unfounded.
PLF claims that the trial court could not have found “unreasonableness” because it
“declar[ed] a lawfully sold product to be a public nuisance.” PLF continues to misconstrue
the basis for the trial court’s decision. The trial court found that defendants were liable for
creating a public nuisance as a result of their conduct in promoting lead paint for interior
residential use while knowing of the hazard that such use would create. The court did not
find that lead paint itself was a public nuisance. As this court ruled in Santa Clara I, such
conduct is unreasonable under the statutory definition of a public nuisance.
PLF argues that the trial court’s judgment “impermissibly broadens the definition of
‘public right’ ” by applying it to injuries caused by “products . . . bought and used by
individuals . . . .” Once again, PLF misconstrues the trial court’s judgment. No individual
injuries are being redressed. The trial court’s judgment requires only that defendants
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PLF also contends that the trial court’s judgment violates separation of powers, a
contention that we have already analyzed in section IV(C) of this opinion.
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remediate the dangerous conditions they created in the housing stock in these 10
jurisdictions. PLF also attacks the trial court’s finding of causation, but its argument
ignores the evidence that we have already concluded, with one exception, supports the trial
court’s causation finding.
PLF contends that the judgment improperly affects the rights of individual property
owners without notice. It does not. The abatement plan ordered by the trial court is
premised on voluntary participation by property owners. No property owners will be forced
to participate, and therefore their rights will not be involuntarily impacted. While it is true
that the abatement plan contemplates that the 10 jurisdictions will make publicly available a
list of properties that have not been enrolled in the abatement plan, this provision alone does
not substantially impact the rights of individual property owners. Already, any property
built before 1978 is presumed to contain lead paint. (Cal. Code Regs., tit. 17, § 35043.)
That presumption eliminates any impact on a property owner from a publicly available list
of only those presumptively lead-paint-containing properties that have not been enrolled in
the abatement plan. Property owners can only gain from enrollment in the plan; they have
nothing to lose. PLF insists that the court’s abatement order has “declared a nuisance” on
individual properties without notice to the property owners. Not so. The trial court ordered
defendants to abate the public nuisance they had created, but it did not identify any specific
properties. The abatement plan itself is designed to identify and remediate the individual
properties upon which defendants’ public nuisance exists.
PLF maintains that public policy and a “national trend” favor rejection of the
application of public nuisance in this case. It relies in part on out-of-state cases that have
rejected public nuisance liability in lead paint cases. Those cases did not apply California
public nuisance law, so they are inapposite. PLF’s reliance on Firearm Cases is no more
helpful to its cause. In that case, the First District Court of Appeal found causation
134
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lacking. “Merely engaging in what plaintiffs deem to be a risky practice, without a
connecting causative link to a threatened harm, is not a public nuisance.” (Firearm Cases,
supra, 126 Cal.App.4th at p. 988.) “In this case, there is no causal connection between any
conduct of the defendants and any incident of illegal acquisition of firearms or criminal acts
or accidental injury by a firearm.” (Id. at p. 989.) Here, unlike in the First District’s case,
defendants did not merely sell a product that posed a risk of harm. Defendants promoted
lead paint for interior residential use knowing that such use would create a serious risk of
harm to children. As we have already determined, substantial evidence supports the trial
court’s decision that, with one exception, plaintiff established causation.
PLF argues that public policy weighs against recognizing a public nuisance cause of
action in this case. “[I]f the lawful sale of a legal product can later serve as the basis of
public nuisance liability of unlimited severity, businesses will be less willing to participate
in the California market, or to provide citizens with products that might later prove
hazardous or simply unpopular.” This argument is divorced from the facts of this case.
When a manufacturer promotes a product for a specific use that it knows will create a
hazardous condition, public policy supports the use of California public nuisance law to
require the manufacturer to remediate the hazards created by its conduct.
C. NFIB
NFIB argues that the trial court failed to require plaintiff to establish that defendants
acted with the requisite knowledge and that defendants’ conduct caused the public nuisance.
We have already addressed these issues in response to defendants’ contentions. NFIB also
repeats some of the same arguments that PLF makes, which we have already rejected.
NFIB argues that courts have previously rejected large-scale public nuisance actions, but it
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PLF repeatedly identifies that case as being from “this Court.” It is not from this
court, but from the First District.
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offers no detailed analysis of the reasons why those cases failed. It also notes that prior
public nuisance actions in other states against lead paint manufacturers have failed. NFIB’s
main argument seems to be that courts should not allow public nuisance causes of action to
be based on products, and it explicitly urges this court to “reconsider” Santa Clara I. We
decline to do so for the reasons expressed in Santa Clara I.
D. Amici Supporting Plaintiff
Changelab argues that public nuisance abatement orders like the trial court’s decision
are urgently needed due to the lack of resources to combat the “epidemic” of lead poisoning
arising from lead paint in residential housing. AAPCA emphasizes the need for “primary
prevention” to ensure safe housing for children to avoid the “potentially devastating effects”
of childhood lead poisoning, including irreversible cognitive impairment and developmental
problems. It notes that remediation of housing containing lead paint is “the most critical
step” in primary prevention. CCLHO echoes these concerns and points out the burden on
governmental resources created by childhood lead poisoning, which disproportionately
impacts economically disadvantaged children. EHC observes that a large portion of the
housing stock continues to contain deteriorating lead paint that poses a serious health risk to
children. EHC expresses substantial concern about the fact that the children most at risk,
the poor, who live in the oldest, most deteriorated housing, are those with the least access to
healthcare and are therefore those who are the least likely to be tested for lead and treated
for lead poisoning.
All of the concerns expressed by the amici in support of plaintiff support the trial
court’s decision to order remedial abatement as an equitable remedy for defendants’
knowing creation of a public nuisance.
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VII. Disposition
The judgment is reversed, and the matter is remanded to the trial court with
directions to (1) recalculate the amount of the abatement fund to limit it to the amount
necessary to cover the cost of remediating pre-1951 homes, and (2) hold an evidentiary
hearing regarding the appointment of a suitable receiver. Plaintiff shall recover its costs on
appeal.
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_______________________________
Mihara, J.
WE CONCUR:
_____________________________
Premo, Acting P. J.
_____________________________
Elia, J.
People v. ConAgra et al.
H040880
138
Trial Court: Santa Clara County Superior Court
Trial Judge: Honorable James P. Kleinberg
Attorneys for Plaintiff, Cross-defendant and
Respondent: Orry P. Korb
Danny Y. Chou
Greta S. Hansen
Jenny S. Lam
Kavita Narayan
Meghan F. Loisel
Lorraine Van Kirk
Office of the County Counsel,
County of Santa Clara
Donna R. Ziegler
Andrew Massey
Office of the County Counsel,
Alameda County
Mark J. Saladino
Robert E. Ragland
Andrea Ross
Office of the County Counsel,
County of Los Angeles
Charles J. McKee
William M. Litt
Office of the County Counsel,
County of Monterey
Barbara Parker
Wendy M. Garbers
Office of the City Attorney,
City of Oakland
Christopher Kee
139
Jan I. Goldsmith
Daniel F. Bamberg
Paul F. Prather
Office of the City Attorney,
City of San Diego
Dennis J. Herrera
Owen J. Clements
Erin Bernstein
Office of the City Attorney,
City and County of San Francisco
John C. Beiers
Rebecca M. Archer
Office of the County Counsel,
County of San Mateo
Dennis Bunting
Office of the County Counsel,
Solano County
Leroy Smith
Eric Walts
Office of the County Counsel,
County of Ventura
Michael Rubin
Stacey M. Leyton
Altshuler Berzon LLP
Joseph W Cotchett
Nancy L. Fineman
Brian M. Schnarr
Cotchett, Pitre & McCarthy, LLP
Peter G. Earle
Law Office of Peter Earle, LLC
Fidelma Fitzpatrick
Robert J. McConnell
Motley Rice LLC
140
Mary E. Alexander
Jennifer L. Fiore
Sophia M. Aslami
Mary Alexander & Associates
Attorneys for Defendant and Appellant
ConAgra Grocery Products Company: Raymond A. Cardozo
Margaret M. Grignon
Anne M. Grignon
Kasey J. Curtis
Reed Smith LLP
Allen J. Ruby
Jack P. DiCanio
Patrick Hammon
Skadden, Arps, Slate, Meagher &
Flom LLP
James P. Fitzgerald
James J. Frost
McGrath North Mullin & Kratz,
PC, LLO
Attorneys for Defendant and Appellant
NL Industries, Inc.: Donald E. Scott
Andre M. Pauka
Jameson R. Jones
Bartlit Beck Herman Palenchar &
Scott LLP
James McManis
William Faulkner
McManis Faulkner
Richard A. Derevan
Todd E. Lundell
Snell & Wilmer, LLP
141
Attorneys for Defendant, Cross-complainant
And Appellant The Sherwin-Williams Company: Robert A. Mittelstaedt
John W. Edwards II
Paul Michael Pohl
Charles H. Moellenberg, Jr.
Leon F. Dejulius, Jr.
Jones Day
David M. Axelrad
Lisa Perrochet
Horvitz & Levy LLP
Attorney for Changelab Solutions et al.,
as Amici Curiae on behalf of Plaintiff,
Cross-defendant and Respondent: Ingrid M. Evans
Evans Law Firm Inc.
Attorney for California Conference of Local
Health Officers as Amicus Curiae on behalf of
Plaintiff, Cross-defendant and Respondent: Paula Canny
Law Offices of Paula Canny
Attorneys for American Academy of Pediatrics,
California as Amicus Curiae on behalf of Plaintiff,
Cross-defendant and Respondent: Dario de Ghetaldi
Clare Capaccioli Velasquez
Corey, Luzaich, de Ghetaldi,
Nastari & Riddle LLP
Attorney for Environmental Health Coalition and
Healthy Homes Collaborative as Amici
Curiae on behalf of Plaintiff, Cross-defendant
and Respondent: Michael E. Wall
National Resources Defense
Council
142
Attorneys for Pacific Legal Foundation as Amicus
Curiae on behalf of Defendants and Appellants
ConAgra Grocery Products Company et al.: Timothy Sandefur
Christopher M. Kieser
Pacific Legal Foundation
Attorneys for NFIB Small Business Legal
Center et al., as Amici Curiae on behalf of
Defendants and Appellants ConAgra Grocery
Products Company et al.: Phil Goldberg
Amir Nassihi
Shook, Hardy & Bacon LLP
Attorney for Civil Justice Association of
California as Amicus Curiae on behalf of
Defendants and Appellants ConAgra Grocery
Products Company et al.: Fred J. Hiestand
People v. ConAgra et al.
H040880
143