APS&EE, LLC v. New England Greens, LLC

(Stanley Mosk Courthouse: Dept. 733) August 25, 2026 DEPARTMENT 733 LAW AND MOTION RULINGS

STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES APS&EE, LLC, a limited liability company, Plaintiff, vs. NEW ENGLAND GREENS, LLC, a limited liability company, and DOES 1 through 100, inclusive, Defendants. |))))))))))) | CASE NO.: 25STCV22241 [TENTATIVE] ORDER RE: PLAINTIFF'S MOTION TO APPROVE PROPOSITION 65 SETTLEMENT AND CONSENT JUDGMENT Dept. 733 8:30 a.m. August 25, 2026 | I. INTRODUCTION This is an action brought by Plaintiff APS&EE, LLC ("Plaintiff") in the public interest of the citizens of the State of California, a representative action to enforce the People's right to be informed of the presence of lead ("Lead"), a chemical known to the State of California to cause cancer and birth defects or other reproductive harm, in Vibrant Health Green Vibrance and Vibrant Health Maximum Vibrance (dietary supplements) sold by Defendant New England Greens, LLC ("Defendant").

On June 30, 2026, Plaintiff filed the instant motion to approve Proposition 65 Settlement and Consent Judgment. No opposition was filed. II. LEGAL STANDARD The Safe Drinking Water and Toxic Enforcement Act of 1986, colloquially known as Proposition 65, was passed as a ballot initiative by the California voters, and was designed to prevent the contamination of drinking water with, and generally protect the public from unknowing exposure to, harmful chemicals. (12 Witkin, Summary of California Law (11th ed. 2017) Real Property, Sec.967.)

Health & Safety Code (" Hlth. & Saf. Code ") Sec. 25249.7 governs the enforcement of Proposition 65. Proposition 65 has both public and private enforcement mechanisms. (Hlth. & Saf. Code Sec. 25249.7(c), (d).) Violations are punishable by injunction (H&SC Sec. 24259.7(a)) and civil penalty (Hlth. & Saf. Code Sec. 24259.7(b)). In the case of private enforcement actions, parties may also recover attorney's fees, pursuant to the provisions in Code of Civil Procedure section 1021.5, governing actions concerning important rights affecting the public interest.

Health & Safety Code Sec. 25249.7(f) governs the role of the Court in approving settlements and consent judgments for private actions to enforce Proposition 65. Section 25249.7(f)(4) provides, in relevant part, that: "If there is a settlement of an action brought by a person in the public interest under subdivision (d), the plaintiff shall submit the settlement, other than a voluntary dismissal in which no consideration is received from the defendant, to the court for approval upon noticed motion, and the court may approve the settlement only if the court makes all of the following findings: (A) The warning that is required by the settlement complies with this chapter. (B) The award of attorney's fees is reasonable under California law. (C) The penalty amount is reasonable based on the criteria set forth in paragraph (2) of subdivision (b)." (Consumer Advocacy Group, Inc. v.

Kintetsu Enterprises of America (2006) 141 Cal.App.4th 46, 61.) The "trial court must look at the three factors and if any of those factors are not present it can't approve the settlement." (Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal App.4th 1185, 1207.) III. DISCUSSION Plaintiff moves for the Court's approval of the settlement reached in an action involving alleged violations of California Health & Safety Code section 25249.6 et seq. ("Proposition 65") by Defendant with respect to Vibrant Health Green Vibrance supplement, including but not limited to 0- 74306-80001-5, and Vibrant Health Maximum Vibrance supplement, including but not limited to 0-74306-80128-9 (hereafter collectively, the "Products"). "'Before approving a consent decree, a district court must be satisfied that it is at least fundamentally fair, adequate and reasonable."' When reviewing a consent decree, a court must independently review its terms to avoid 'rubber stamp approval.'" (Ecological Rts.

Found. v. Liberty Utilities (CalPeco Elec.) LLC (E.D. Cal. Dec. 11, 2025) 2025 WL 3551714, at *2 (citation omitted).)

A. Procedural Requirements First, under Health & Safety Code section 25249.7(f), a plaintiff filing an action in the public interest pursuant to this section must submit a copy of the settlement to the Attorney General. (See Hlth. & Saf. Code Sec. 25249.7(f)(1) [plaintiff must "submit to the Attorney General a reporting form that includes the results of that settlement or judgment and the final disposition of the case, even if dismissed"]; Cal. Code Regs. tit. 11, Sec. 3003(a) [" The Private Enforcer shall serve the Settlement on the Attorney General with a Report of Settlement in the form set forth in Appendix B within five days after the action is Subject to a Settlement, or concurrently with service of the motion for judicial approval of settlement pursuant to Health and Safety Code section 25249.7(f)(4), whichever is sooner."].)

Also, the plaintiff "shall serve the motion and all supporting papers on the Attorney General, who may appear and participate in a proceeding without intervening in the case." (Hlth. & Saf. Code Sec. 25249.7(f)(5).) The motion and all supporting papers " shall be served on the Attorney General no later than forty-five days prior to the date of the hearing of the motion." (Cal. Code Regs. tit. 11, Sec. 3003(a).) The papers filed with the court must also "advise the court that the fact that the Attorney General does not object or otherwise respond to a settlement shall not be construed as endorsement of or concurrence in any settlement." (Ibid.)

Here, Plaintiff's counsel has provided an affidavit of compliance. (Cal. Code Regs. tit. 11, Sec. 3008 [" A Private Enforcer shall file with the court a declaration or affidavit, meeting all applicable requirements of the Code of Civil Procedure, verifying compliance with all requirements of this chapter."].) Counsel attests that he has " caused the Attorney General's Office to be served with all documents required by Title 11, California Code of Regulations ("CCR") section 3000, et seq., in the manner prescribed by the regulations or other guidance from that office." (Novak Decl., P. 2.)

He also declares that the motion "has been scheduled to be heard at least forty-five days from the date the Attorney General will be properly served with a copy of the [Proposed] Consent Judgment and all moving papers seeking judicial approval of the settlement." (Id. P. 3.) Counsel has also provided Proof of Service reflecting that the Proposed Judgment, motion and supporting papers were served via mail on the Attorney General on June 30, 2026. Thus, the procedural requirements have been met.

B. Adequacy of Warning Health & Safety Code section 25249.6 states, in relevant part: "No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10." (Health & Safety Code, Sec. 25249.6.) "Health and Safety Code section 25249.6 (the central warning provision) requires that there be no 'knowing and intentional' exposure 'without first giving clear and reasonable warning.'" (Consumer Defense Group v.

Rental Housing Industry Members, supra, 137 Cal.App.4th at p. 1214.) A compliant warning within the meaning of the Act is established by regulation, thus: (a) A warning is "clear and reasonable" within the meaning of Section 25249.6 of the Act if the warning complies with all applicable requirements of this article. (b) Except as otherwise specified in Section 25607 et seq., a warning meets the requirements of this subarticle if the name of one or more of the listed chemicals in the consumer product or affected area for which the warning is being provided is included in the text of the warning.

Where a warning is being provided for more than one endpoint (cancer and reproductive toxicity) the warning must include the name of one or more chemicals for each endpoint, unless the named chemical is listed as known to cause both cancer and reproductive toxicity and has been so identified in the warning. (c) Notwithstanding any other provisions in this subarticle, consumer product exposure warnings must be prominently displayed on a label, labeling, or sign, and must be displayed with such conspicuousness as compared with other words, statements, designs or devices on the label, labeling, or sign, as to render the warning likely to be seen, read, and understood by an ordinary individual under customary conditions of purchase or use. (d) Environmental exposure warnings must be provided in a conspicuous manner and under such conditions as to make the warning likely to be seen, read, and understood by an ordinary individual in the course of normal daily activity. (e) The warning content may contain information that is supplemental to the content required by this subarticle only to the extent that it identifies the source of the exposure or provides information on how to avoid or reduce exposure to the identified chemical or chemicals.

Such supplemental information is not a substitute for the warning content required by this subarticle. (Cal. Code Regs. tit. 27 Sec. 25601.) Section 25603 of the same title sets forth specific language and formatting for both long and short-form warnings for compounds which are both cancerous and reproductive toxicants. (Cal. Code Regs. tit. 27 Sec. 25603 subd. (a)(4); (b)(4).)

The Proposed Judgment that whenever a warning is required, Defendant may elect from three warning options: Option 1: WARNING [or CA WARNING or CALIFORNIA WARNING]: Consuming this product can expose you to Lead, which is known to the State of California to cause [cancer and] birth defects or other reproductive harm. For more information go to www.P65Warnings.ca.gov/food. Option 2: WARNING [or CA WARNING or CALIFORNIA WARNING]: Risk of [cancer and] reproductive harm from exposure to lead. See www.P65Warnings.ca.gov/food. or WARNING [or CA WARNING or CALIFORNIA WARNING]: Can expose you to lead, a [carcinogen and] reproductive toxicant.

See www.P65Warnings.ca.gov/food. Option 3: (for Products manufactured and labeled before January 1, 2028) WARNING: [Cancer and] Reproductive Harm -www.P65Warnings.ca.gov/food. (Proposed Judgment Sec.Sec. 2.1, 2.3.) This warning complies with the format for warnings allowed under California Code of Regulations, title 27, section 25603. See 27 Cal. Code Regs., Sec. 25603, subd. (a)(2)(C). The proposed consent judgment meets the requirements of Health and Safety Code, section 25249.7, subdivision (f)(4)(A).

C. Reasonableness of Attorney Fees The Proposed Judgment provides for a total amount of $42,000.00 to be paid as reimbursement of Plaintiff's attorney fees and costs. The court must review the amount of attorney fees sought and make a finding on the reasonableness of such fees. "The primary method for establishing the amount of 'reasonable' attorney fees is the lodestar method," which is produced by multiplying the number of hours reasonably expended by counsel by a reasonable hourly rate. (In re Consumer Privacy Cases (2009) 175 Cal.App.4th 545, 556.) Under California law, "the fact that the defendant agreed to pay the fee does not automatically render the fee reasonable." (Cal. Code Regs. tit. 11, Sec. 3201(a).)

Plaintiffs' counsel attests that the rates billed in this matter were billed as follows: investigator fees at $295 per hour, paralegal fees at $375 per hour, and his attorney fees at $695 per hour. (Novak Decl., P. 12, Ex. C [copy of the fees and costs summary].) The tasks performed include: investigations regarding Defendant, including its business locations, product lines, product literature and labels, internet sales, and any associated product warnings; in-house work in taking custody of the purchased products, additional photographing, reviewing reports and receipts, recording product attributes, updating the investigation file, maintaining chain of custody and managing evidence, preparing summaries for the client, and preparing questions and topics to discuss with experts; reviewing and researching the possibilities of succeeding at trial; drafting a sixty-day notice is a process which must satisfy specific requirements under Proposition 65; preparation of a Request for Entry of Default and accompanying documents; informed settlement discussions following default; and drafting the instant motion to approve. (Ibid.)

Given that the case is almost two years old from Plaintiff's perspective, as work began on the case before Plaintiff served its 60-Day Notice dated January 27, 2025, and Plaintiff's counsel attests to 59.8 hours of work, including paralegal and investigator work, the Court finds that the attorney fees incurred is reasonable under the circumstances.

D. Reasonableness of Penalty In assessing the amount of a civil penalty for a violation of this chapter, the court shall consider all of the following: (A) The nature and extent of the violation. (B) The number of, and severity of, the violations. (C) The economic effect of the penalty on the violator. (D) Whether the violator took good faith measures to comply with this chapter and the time these measures were taken. (E) The willfulness of the violator's misconduct. (F) The deterrent effect that the imposition of the penalty would have on both the violator and the regulated community as a whole. (G) Any other factor that justice may require. (Hlth. & Saf.

Code, Sec. 25249.7(b)(2).) Under the Act, the amount of the penalty is not compensatory and is not based on any harm suffered by consumers. Rather, it is designed to deter misconduct and harm: "The Act is informational and preventative rather than compensatory in its nature and function. The statutory damages available under the Act in the nature of civil penalties do not grow out of a claim for moneys due and owing or for personal harm or property damages that have resulted from discharge of pollutants or other toxic chemicals, which are actions triable by a jury at common law. . . .

Rather, Proposition 65 is distinguishable in its fundamentally equitable purpose and remedy: to facilitate the notification of the public of potentially harmful substances, so informed decisions may be made by consumers on the basis of disclosure. "Citizens bringing [Proposition 65] suits need not plead a private injury and instead are deemed to sue 'in the public interest.' [Citation.]" . . . An award of civil penalties under the Act is a statutory punitive exaction determined on the basis of equitable principles, designed to deter misconduct and harm, not to compensate the plaintiff for actual damages sustained. (Citations omitted.)

The primary right to bring an action for civil penalties pursuant to the Act is also given to the state rather than individuals seeking compensation. (Sec. 25249.7, subd. (c).) Moreover, the Act does not have a standing requirement; a plaintiff need not allege or prove damages to maintain an action under Proposition 65. As such, the statutory remedies afforded by the Act, including civil penalties, are not damages at law, but instead constitute equitable relief appropriate and incidental to enforcement of the Act, which do not entitle the plaintiff to a jury trial. (Citations omitted.)

The "incidental award of monetary damages by a court in the exercise of its equitable jurisdiction does not convert the proceeding into a legal action." (DiPirro v. Bondo Corp. (2007) 153 Cal.App.4th 150, 182-184). Thus, the purpose of the civil penalty is to deter misconduct and harm in the future. The amount of the penalty should be aimed at serving these purposes based on equitable principles.

The following factors are considered "[other factors] that justice may require" within the meaning of Health and Safety Code Sec. 25249.7(b)(2)(G): (a) A settlement with little or no penalty may be entirely appropriate or not, based on the facts or circumstances of a particular case. (b) Recovery of civil penalties (75% of which must be provided to the Office of Environmental Health Hazard Assessment) serves the purpose and intent of Proposition 65. Accordingly, civil penalties shall not be "traded" for payments of attorney's fees. (c) Where a settlement provides that certain civil penalties are assessed, but may be waived in exchange for certain conduct by the defendant, such as, for example, reformulating products to reduce or eliminate the listed chemical, the conduct must be related to the purposes of the litigation, provide environmental and public health benefits within California, and provide a clear mechanism for verification that the qualifying conditions have been satisfied. (d) Where a settlement requires the alleged violator to make any Additional Settlement Payments to the plaintiff or to a third party, such Additional Settlement Payments are viewed as an "offset" to the civil penalty.

The plaintiff must demonstrate to the satisfaction of the court that it is in the public interest to offset the civil penalty required by statute. (Cal. Code Regs. tit. 11 Sec. 3203.)

Here, the Proposed Judgment provides that Defendant pay civil penalties in the total amount of $18,000.00, which is to be apportioned with 75% remitted to the State of California Office of Environmental Health Hazard Assessment ("OEHHA"), and the remaining 25% remitted to Plaintiff pursuant to Health and Safety Code section 25249.12(c) & (d). (Novak Decl., P. 13.) First, Plaintiff describes the nature and extent of the violation, specifically that Defendant manufactured or imported, and sold and distributed the Products to California retailers for sale to California consumers. (Id.

P. 15.) The nature of the violation was serious because the Products are dietary supplements intended to be consumed, especially considering that it was advertised that a consumer consume at least one serving per day. (Ibid.) The Complaint alleges violations have occurred each day since January 27, 2024 and seeks civil penalties in the amount of $2,500 per day for each violation. Defendant has represented that it sold approximately 27,000 units that generated $1.3 million in revenue during the relevant period. (Id.

P. 16.) Plaintiff's counsel provides that civil penalties for similar violations, i.e., lead exposure from consumer goods at the early stage of litigation, do not often exceed what is being sought here. (Ibid.)

As for whether Defendant took good faith measures to comply with statute, Plaintiff believes that Defendant knew or should have known about the high lead content, and that zero good faith measures were taken with respect to the Products until Plaintiff obtained default against Defendant, following the filing of the Complaint. (Id. P. 18.) Plaintiff believes that Defendant's change in conduct would not have occurred but for Plaintiff's lawsuit and obtaining default. Plaintiff believes this factor weighs in favor of a civil penalty that is higher than most court-approved civil penalties involving similar goods at early stages of litigation. (Ibid.)

Finally, the parties reached a settlement in the form of the Proposed Judgment, where Defendant has agreed to the specific injunctive relief, which exhibits some good faith to comply. (Ibid.) Given the delay in resolving the matter and "the extremely high amounts of lead in the Products discovered by Plaintiff." Plaintiff believes the misconduct was willful as Defendant knew or should have known about the presence of lead in the Products. (Id. P. 19.)

As for the deterrent effect of the penalty, Plaintiff believes this civil penalty should provide Defendant with the incentive to ensure future compliance with Proposition 65 with respect to the Products, without unduly impeding Defendant's entire business. Defendant can safely assume that if it does not comply with the law, its products are being monitored, and it may be forced to pay additional civil penalties and attorneys' fees. (Id. P. 20.) Also, because all settlements and consent judgments are public record, this Proposed Judgment will likely provide other companies with the incentive to ensure future compliance with Proposition 65. (Ibid.)

Additionally, public policy favors settlement and, if approved, will save judicial resources. Moreover, approval and entry of the Consent Judgment will trigger the "Effective Date" of the Proposed Judgment and require Defendant to comply with the no-sale, reformulation, or warning requirements, thus providing the citizens of California with the desired equitable relief without delay. (Id. P. 21.)

The Court finds the Proposed Judgment provides for warnings in compliance with Prop 65, the civil penalty provided for reasonable per Health & Safety Code Sec.25249.7(b)(2) and the attorney's fees included as part of the Consent Judgment are reasonable. The civil penalty amount is reasonable considering the amount of the chemical detected, the extent of exposures to the chemical through distribution and retail sales throughout California, the sufficient economic effect the penalty and fees will have on Defendant, Defendant's apparently lack of willingness to take immediate action to reformulate the Covered Products or provide warnings on the products, and the amount of the penalty as a sufficient deterrent against future violations.

The Proposed Judgment is thus just and serves the public interest. Based on the foregoing, Plaintiff's motion to approve and enter consent judgment is granted. IV. CONCLUSION Plaintiff's motion to approve and enter consent judgment is GRANTED. Dated this 25th day of August 2026 | | | Hon. Gary D. Roberts Judge of the Superior Court | Case Number: 26STCP00757 Hearing Date: August 25, 2026 Dept: 733 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF LOS ANGELES