Davia v. Be Wicked CA1/3

Filed 10/20/22 Davia v. Be Wicked CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

SUSAN DAVIA, Plaintiff and Appellant, A163076 v. (Marin County BE WICKED, INC., Super. Ct. No. CIV1704091)

Defendant and Respondent.

Defendant Be Wicked, Inc. (Be Wicked), an adult costume and accessories retailer and distributor, and plaintiff Susan Davia entered a consent judgment that, among other things, prohibited Be Wicked from selling or shipping certain products that fail to comply with notice obligations in Proposition 65 — the Safe Drinking Water and Toxic Enforcement Act of 1986. (Health & Saf. Code, § 25249.5 et seq.) In a postjudgment order, the trial court awarded Davia $47,293.75 in private attorney general fees (Code Civ. Proc., § 1021.5; undesignated statutory references are to this code) after determining she was a successful party, but it reduced her requested fees by 60 percent and denied her fees for litigating the fee award. On appeal, Davia argues the court improperly reduced her fee award after erroneously concluding her litigation achieved limited success. We agree and reverse.

1

BACKGROUND Proposition 65 requires companies that expose consumers to chemicals known to cause cancer, birth defects, or reproductive harm to provide a reasonable and clear warning regarding their products. (Health & Saf. Code, § 25249.6.) In February 2017, Davia sent Be Wicked a Proposition 65 prelitigation notice,1 alleging Be Wicked manufactured, distributed, and sold vinyl packaging and costume storage cases that exposed users to high concentrations of carcinogens di(2-ethylhexyl)phthalate (DEHP) and/or di(isononyl)phthalate (DINP) without any warning of the chemical content or exposure risk. (Cal. Code Regs., tit. 27, § 27001, subd. (b).) As stated in the notice, Davia intended to file a lawsuit unless Be Wicked entered into a binding written agreement to recall products already sold or ensure the requisite health hazard warnings are provided, to provide clear reasonable warnings for future products, and to pay an appropriate civil penalty. (Health & Saf. Code, § 25249.7, subd. (b).) Shortly after receiving the notice, Be Wicked applied warnings to its products and its website. A few months later, Davia offered Be Wicked the option of joining an existing group settlement with other manufacturers and distributors of similar products. She proposed settling for a $3,000 civil penalty and $15,500 in attorney fees reimbursement for her counsel’s work to date. Be Wicked rejected the offer; Davia continued to investigate Be Wicked,