SACRAMENTO, Calif. (Legal Newsline) – A group that achieves its advocacy results by suing California businesses is asking the new judge hearing a key case to rule in its favor and preserve dozens of other lawsuits.
The Council for Education and Research on Toxics on Nov. 1 filed a motion to dismiss litigation brought by the California Chamber of Commerce, which challenges the placement of acrylamide on the state’s notorious Prop 65 list.
Sacramento judge Kim Mueller had rejected state Attorney General Xavier Becerra’s arguments against CalChamber’s case, finding there was no definitive proof acrylamide – which occurs naturally in foods that have been roasted like coffee beans – causes cancer in humans.
But CERT mounted on attack on Mueller’s objectivity, asking her to recuse herself because of her husband’s business interests. She reluctantly agreed and called out CERT for only wanting her off the case because of her previous ruling.
CERT is an intervenor-defendant and says it has sued about 85 coffee roasters and retailers like Starbucks for not including a Prop 65 could-cause-cancer warning on their coffee products. Those cases are on hold thanks to Mueller granting an injunction against acrylamide litigation in the state.
All other Sacramento judges refused to hear the case after Mueller recused herself, and Fresno judge Dale Drozd took it.
CERT is now arguing the federal court lacks jurisdiction to hear CalChamber’s case. It also claims Becerra’s and CalChamber’s interests are the same.
“While it would appear from the face of the pleadings that the interests of CalChamber and the Attorney General are antagonistic, the facts show that their interests are actually aligned, because both CalChamber and the Attorney General have long sought to undermine Proposition 65 with respect to acrylamide in food,” the motion says.
“Indeed, in its representation of the Office of Environmental Health Hazard Assessment and its predecessor, the Health and Welfare Agency, the California Attorney General has vigorously litigated against the enforcement of Proposition 65 with respect to acrylamide in food.
“Throughout the many years that the Attorney General has litigated against enforcement of Proposition 65 with respect to acrylamide in food, he has done so in derogation of his primary duty to enforce and defend California laws against all legal challenges.”
CERT had initial success with big settlements more than 10 years ago, but now has little revenue and doesn’t bother to maintain a website. It is based in the Long Beach, Calif., offices of Raphael Metzger, a plaintiff attorney who focuses on litigation over workplace exposures to toxic substances.
He also serves as CERT’s lawyer and submitted the motion to dismiss. He’s making the argument CalChamber doesn’t have a real interest in this case – only its members do, if they sell coffee.
“However, CalChamber has repeatedly refused to identify even a single one of its members that has allegedly been harmed by the Proposition 65 warning requirement, let alone join any of its members allegedly harmed by the warning requirement as parties Plaintiff,” Metzger wrote.
After Judge Mueller issued her injunction, the organization launched what she described as “uncommonly aggressive, scorched-earth efforts” to have her removed from the case. Despite reporting less than $50,000 in revenue and under $200,000 in assets, CERT served subpoenas on the judge’s husband and his business, and an ally in the case dispatched lawyers to government offices to gather evidence it said showed he was associated with CalChamber and owned an almond ranch that could be the subject of acrylamide litigation.
Criticizing CERT and its lawyers for their tactics, Judge Mueller nonetheless recused herself and urged the judge who replaces her to investigate whether CERT’s lawyers violated federal and local rules of civil procedure and ethics by filing the recusal motion after the case had been pending for more than two years and only after an adverse ruling.