SACRAMENTO, Calif. (Legal Newsline) – Having successfully removed the previous judge from the case, a group in the business of suing companies that sell coffee without a cancer warning now wants the replacement to ignore her previous rulings.
That’s the argument of the California Chamber of Commerce as it fights a motion to dismiss its lawsuit brought over the placement of acrylamide on the state’s notorious Prop 65 list. It sued in federal court to block acrylamide litigation and received a favorable ruling earlier this year from Judge Kimberly Mueller.
But the Council for Education and Research on Toxics, a group that seems to have few aspirations past suing dozens of companies that sell coffee and other products in which acrylamide naturally occurs, attacked Mueller’s objectivity two years after she was assigned the lawsuit.
Now CERT is asking her replacement to toss the case because, it says, CalChamber lacks standing to bring it.
“This is only the most recent example of CERT unnecessarily multiplying these proceedings and burdening the court and should prompt the court to consider revoking or limiting CERT’s status as an intervenor,” attorneys for CalChamber wrote Nov. 23.
“Most significantly, CERT hides that the judge previously presiding over this case already ruled that CalChamber sufficiently alleged a credible threat of enforcement by the (state attorney general) to support Article III standing.”
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 an 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.”
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. 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 replaced 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.