The California Legislature has done something it’s found exceedingly difficult to do since Proposition 65’s adoption by ballot initiative 31 years ago: amend the law.
For only the third time since 1986, the Legislature has made substantive revisions to Prop 65 that focus on the private enforcement mechanism.
Since 2001, private enforcers who serve a pre-suit notice alleging a violation of Prop 65’s warning requirement must include with the notice a “certificate of merit.” The certificate must recite that the enforcer:
has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical that is the subject of the action, and that, based on that information, the person executing the certificate believes there is a reasonable and meritorious case for the private action.
Private enforcers must also attach “factual information sufficient to establish the basis of the certificate of merit” to the copy of the certificate served on the California Attorney General, but need not provide it to the noticed company. This factual information is generally not discoverable in litigation, unless the court finds that there was no credible basis for an exposure to a listed chemical after an in camera hearing, in which the noticed company does not get to see the information.
On September 14, 2017, the Legislature amended the certificate of merit provisions and sent AB 1583 to Governor Brown for signature. AB 1583 would do two things:
- Require the Attorney General to send a letter to the private enforcer and the recipients of the 60-day notice when the Attorney General has reviewed the certificate of merit and determined that there is no merit to an action;
- Make the basis for the certificate of merit discoverable in litigation, to the extent that the information is relevant to the subject matter of the action and not subject to the attorney-client privilege, the attorney work product privilege, or any other legal privilege.
The first revision codifies the Attorney General’s current practice of sending letters when his office determines that an action has no merit, although it is not clear how the Attorney General currently reaches such determinations, and whether this will have an impact going forward.
The second revision address ambiguity in the current statute, which provides that the factual basis of a certificate of merit is not discoverable, unless it is relevant to the subject matter and otherwise discoverable. This confusing language—nothing is discoverable unless it is relevant to the subject matter of the litigation—resulted in many private plaintiffs taking the position that the basis of the certificate of merit was never discoverable, forcing defendants seeking such information to try to pierce the privilege and what appeared to be a presumption of non-discoverability.
Under the amendment, defendants would have a prima facie right to seek discovery of the factual basis for the certificate, and the burden would be on the private enforcer to justify any privilege or work product objections, as is the case with any other assertion of privilege.
AB 1583 is widely supported by the business community and had no recorded opposition. The Governor is expected to sign it, and assuming he does, it would become effective on January 1, 2018. As was the case after the adoption of SB 471 in 2001, there may be litigation over the retroactive application of the amendment to notices served prior to its effective date (the 2001 amendments were deemed retroactively applicable procedural rules, and there is every reason to believe that this amendment will be treated similarly).