First District Court of Appeals Opinion Suggests Jury Trials May Be Available Under Proposition 65





The First District Court of Appeals recently issued an opinion that suggests that jury trials may be available in Prop. 65 enforcement actions, in a case unrelated to Proposition 65.

In Nationwide Biweekly Admin., Inc. v. Superior Court of Alameda Cty., Case No. A150264 the Appellate Court disagreed with a prior appellate court’s decision in (DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007). The Dipirro Court ruled that because “equitable principles” are tied to Proposition 65, there is no right to a jury trial in an action by a private individual seeking injunctive relief, restitution, civil penalties, as well as attorney’s fees and costs.

The First District Court of Appeal in Nationwide observed that the DiPirro Court overlooked a US Supreme Court precedent that a right to a jury trial exists as to the liability in a government enforcement action for statutory penalties, even though no right to a jury trial exists with respect to the amount of statutory civil penalties.  While the Nationwide Opinion did not find that there is a right to a jury trial in Prop. 65 enforcement actions, and did not overturn DiPirro v. Bondo the Appellate Court’s criticism of the DiPirro Opinion leaves that decision in doubt and opens the door to future challenges based on the critique of the First District Court.

Two Proposition 65 jury trials have been held in the 31 years since Proposition 65 was enacted.  The first involved alleged environmental releases made by a tanning facility.  The second trial alleged that decorated glass soda bottles exposed consumers of the soda products to lead.

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