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Appellate Court Opens Door to Jury Trials in Proposition 65 Cases

The California Court of Appeal, First Appellate District (First District) recently reversed course on an important issue in the Proposition 65 world by indicating that a jury trial may be available to defendants in certain circumstances. The decision, Nationwide Biweekly Administration, Inc., et al., v. The Superior Court of Alameda County, Opinion, A150264, (June 13, 2018), rebuked both the legal reasoning and conclusion of the First District’s precedent on the issue, DiPirro v. Bondo Corp., 153 Cal.App.4th 150 (2007), which held that Proposition 65 defendants did not have a right to a jury trial.

In DiPirro, the court reasoned that jury trials are not available in Proposition 65 cases because the essential character and purpose of the law is to provide equitable relief, not to impose civil penalties. Id. at 180-81. DiPirro was based on a widely recognized principle in American jurisprudence under the Seventh Amendment to the U.S. Constitution – that litigants in traditional legal actions (i.e., monetary damage cases) are guaranteed the right to a jury trial, whereas litigants in equitable actions do not have such a right.

The First District’s recent decision in Nationwide Biweekly Administration expressly calls into question the legal reasoning and conclusion of DiPirro. The First District states that the DiPirrocourt misconstrued the rule, and that “a right to jury trial does exist as to liability in a government enforcement action seeking statutory penalties” but does not exist as to the amount of those penalties. Of course, Proposition 65 is not strictly an equitable relief statutory scheme – it includes a significant penalty component. On this basis, the First District stated that “we cannot endorse DiPirro’s analysis” given its unsupported conclusion that a right to jury trial does not exist when determining liability for penalties under Proposition 65.

Nationwide Biweekly Administration looks to be a positive development for defendants in Proposition 65 cases, but it does not expressly overturn DiPirro nor undo other fundamental problems with the law, including the fact that the burden of proof is often placed on the defendant. While the First District’s decision is a step in the right direction, it likely will not alter the ultimate conclusion for most Proposition 65 defendants – that settlement is a more cost-effective approach than engaging in lengthy litigation.

©2020 Greenberg Traurig, LLP. All rights reserved. National Law Review, Volume VIII, Number 237

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About this Author

Anthony Cortez, Greenberg Traurig Law Firm, Sacramento, Environmental Law Litigation Attorney
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Anthony is a regulatory attorney and business litigator with a focus on the representation of national consumer product companies and other businesses in compliance, commercial litigation, and government enforcement matters. Throughout California and nationally, Anthony advises and defends clients in legal, regulatory, and administrative proceedings involving numerous industries including food, drug, supplement, cosmetic, apparel, and industrial products, among others.

He is regularly involved in complex and high-dollar value litigation...

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Will Wagner, Litigation Attorney, Greenberg Traurig Law Firm, Phoenix, Arizona, Sacramento, California
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Will Wagner focuses his practice on civil litigation, including commercial disputes, trade secret and employment matters, and political and constitutional litigation. He also practices in the areas of government and regulatory litigation, including public contract disputes, consumer product defense, and California’s unique Proposition 65. He is admitted to practice in Arizona, California, and Nevada, regularly handling matters before administrative agencies, trial courts, and appellate matters before the Nevada Supreme Court, Arizona Supreme Court, and the Ninth Circuit Court of Appeals.

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