Consumer Advocay Group
v. Poolmaster
Filed 11/19/13 Consumer Advocay Group v. Poolmaster CA1/4
NOT TO BE
PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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 FOUR
CONSUMER
ADVOCACY GROUP, INC.,
Plaintiff and Appellant,
v.
POOLMASTER,
INC., et al.,
Defendants and Respondents.
A129796, A130903, A131227
(Alameda County
Super. Ct. No. RG07331650)
Proposition 65, the Safe Drinking
Water and Toxic Enforcement Act of 1986, prohibits businesses from knowingly
exposing anyone to a chemical “known to the state to cause cancer or
reproductive toxicity†without a warning.
(Health & Safety Code
name="_ftnref1" title="">[1] § 25249.6.) A private party may bring an
that violates Proposition 65. (§ 25249.7.)
Plaintiff Consumer Action Group sued
various businesses
title="">[2]
alleging their products (pool water test kits) contained the carcinogen
ortho-Tolidine and failed to provide a warning label. After two years of litigation, defendants
proved to the trial court’s satisfaction that their products contained, not
ortho-Tolidine, but ortho-Tolidine dihydrochloride
(the “salt form†of ortho-Tolidine) which is also a chemical “known to the
state to cause cancer.†The trial court
entered judgment in defendants’ favor because plaintiff failed to prove that
the carcinogen alleged in the complaint (ortho-Tolidine) was precisely the same
carcinogen that is contained in defendants’ products (ortho-Tolidine
dihydrochloride).
We conclude the trial court erred in
ruling, as a matter of law, that
plaintiff’s failure to prove defendants’ products contained ortho-Tolidine was
a material failure of proof of a Proposition 65 violation. We therefore reverse and remand for further
proceedings.
I. BACKGROUND
A. Proposition 65
In 1986, the voters adopted Proposition 65. Among other things, Proposition 65 prohibits businesses from knowingly exposing
consumers to chemicals known by the state to cause cancer or reproductive
toxicity without a warning. (§ 25249.6.)
If, however, the business can show the exposure to a carcinogen poses
“no significant risk assuming lifetime exposure at the level in question,†it
is exempt from the warning requirement. (§ 25249.10, subd. (c).)
The Governor is required to publish
annually an updated list of chemicals that are known by the state to cause
cancer or reproductive toxicity. (§ 25249.8,
subd. (a).) These are referred to as
“listed chemicals.†(See, e.g., Cal.
Code Regs., tit. 27, § 25903 (b)(2)(A).) Two chemicals that appear on the Governor’s
Proposition 65 list are at issue here: The first is “3,3’-Dimethylbenzidine
(ortho-Tolidine),†which has a Chemical Abstract Service (CAS) number of
119-93-7 and was listed in 1988; the second is “3,3-Dimethylbenzidine
dihydrochloride†(ortho-Tolidine dihydrochloride), which has a CAS number of
612-82-8 and was listed in 1992. (Cal.
Code Regs., tit.27, § 27001.) Ortho-Tolidine
dihydrochloride is sometimes referred to as the “salt form†or “dihydrochloride
form†of ortho-Tolidine.
name="_ftnref3" title="">[3]
A private party may bring an
enforcement action against a person who violates Proposition 65, subject to
certain procedural requirements. (§ 25249.7.) One such requirement is that, more than 60
days prior to the filing of an action, the party must send a notice of the alleged violation to “the
Attorney General and the district attorney, city attorney, or prosecutor in
whose jurisdiction the violation is alleged to have occurred, and to the
alleged violator.†(§ 25249.7,
subd. (d)(1).) The notice must
include, among other things: (1) the
name, address and telephone number of the person or entity giving notice, (2)
the name of the alleged violator, (3) the approximate time period during which
the violation is alleged to have occurred, and (4) “the name of each listed
chemical involved in the alleged violation.†(Cal. Code Regs., tit. 27, § 25903, subd.
(b)(2)(A).) The regulation further
provides that it “shall not be interpreted to require more than reasonably
clear information, expressed in terms of common usage and understanding, on
each of the indicated topics.†(Cal.
Code Regs., tit. 27, § 25903, subd. (b)(2).)
The prelitigation notice is designed
to accomplish two things: (1) to give the public prosecutor the means to assess
whether to intervene on the public’s behalf, and (2) to give the target of
the notice the opportunity to avoid litigation by settling with the plaintiff
or by curing any violation. (
Enterprises of America
150 Cal.App.4th 953, 963–964 (Kintetsu).)
B. Procedural History
Plaintiff filed two complaints. The first was filed in June 2007, against
Oreq Corporation, Poolmaster, Inc., Home Depot U.S.A., Inc., and other
defendants. The second was filed in
March 2008 against Aqua Tri, Pool Water Products, Leslie’s Poolmart, Inc.,
Valterra Products, Inc., Chem Lab Products and other defendants; it also named
Oreq Corporation again. The two actions
were consolidated.
For purposes of this appeal, the
complaints were essentially identical in alleging that defendants manufacture
or distribute a consumer product designed to test the concentration of chlorine
in swimming pool, spa and potable water, and that these products contain, and
expose users to 3,3’ Dimethylbenzidine (ortho-Tolidine), a carcinogen. Plaintiff alleged that ortho-Tolidine “first
appeared on the Governor’s Proposition 65 list of Chemicals known to cause
cancer†on January 1, 1988, and thus became subject to Proposition 65 warning
requirements 20 months thereafter, pursuant to section 25249.9, subdivision
(a).
Plaintiff also alleged that the
requisite prelitigation notices were given.
With respect to the first complaint, the notices were sent on December
12, 2006. The second complaint was preceded by notices
sent out on various dates, but it appears that each defendant was sent two
notices, one on June 28, 2007 and another on November
9, 2007.
November 2007
notices. The 2006 and 2007 notices are
different with respect to the identification of the chemicals in question. The 2006 notice states that “[t]he chemical
known to the State to cause cancer relevant to this Notice is 3,3-Dimethylbenzidine
(ortho-Tolidine).†The 2007 notices
state that the relevant chemicals are “3,3’-Dimethylbenzidine (ortho-Tolidine)
and 3,3’-Dimethylbenzidine dihydrochloride.â€
Defendants’ answers and the parties’
early case management statements are not included in the record. It appears, however, that at some point,
“based on discovery,†defendants took the position that their products did not
contain orthotolodine, but rather, orthotolidine dihydrochloride. Defendants characterized this as a “different
chemical†which, they argued, was not included in the prelitigation notices or
the complaint. Plaintiff contended that
“there is no discernable difference between [ortho-Tolidine] and ortho-Tolidine
dihydrochloride . . . [because ortho-Tolidine] is just the free base
form of ortho-Tolidine dihydrochloride and, conversely, ortho-Tolidine
dihydrochloride is merely the salt form of . . . [ortho-Tolidine].â€
Defendants thereafter requested a
bifurcated trial on the issue of “what’s in the bottle,†i.e., what is the
chemical content of defendants’ products.
on the “core issue†of whether or not defendants’ products “contain the
chemical 3,3’ Dimethylbenzidine (ortho-Tolidine), CAS No. 119-93-7, first
appearing on the Proposition 65 List on January 1, 1988.†Although plaintiff has not provided to us the
portions of the record that explain how the “core issue†came to be formulated,
the record shows that plaintiff objected to this narrow articulation of the
issue, arguing that “[d]efendants seek to obstruct the purpose and intent of
Proposition 65 . . . by asking the court to construe the notice
requirements in an inappropriate and artificially strict manner.†In its pre-trial brief, plaintiff contended
that, because Proposition 65 is a remedial statute to be construed broadly in
favor of its goal of public protection, the law did not require plaintiff to
identify separately the salt (dihydrochloride) form of OTO in addition to OTO
in its notice and complaint because OTO in one form or another exists in
defendants’ products, and both are listed as carcinogenic. According to plaintiff, the question should
be whether the notices and complaints provided adequate information from which
defendants could assess the nature of the alleged violation.
Defendants, on the other hand, focused
narrowly on the regulatory requirement that the prelitigation notice must identify “
‘the name of each listed chemical involved in the alleged violation.’ [Citing] Cal. Code of Regulations . . .
Title 27, § 25903(b)(2)(A)4 (emphasis added)[.]†Defendants argued that both the 60-day notices
and the complaints must “clearly identify the chemical in the consumer product
that allegedly triggered a warning obligation,†and “[p]ursuant to Prop 65
enforcement requirements, only . . . this specific chemical [is] the
subject of the lawsuits.†Therefore,
defendants concluded, plaintiff’s actions must be dismissed because it cannot
prove that defendants’ products contain the named chemical OTO, rather than OTO
dihydrochloride.
After a two-day trial, the court
ruled in defendants’ favor. The court
rejected out of hand plaintiff’s foundational argument that the statute is a
remedial one which must be construed broadly.
“However laudable serving the policy behind Proposition 65 may be,†the
court wrote, “it does not alter the burden
of proof on the core issue.†After
reviewing the evidence presented at trial, the court found that plaintiff had
failed to prove that defendants’ products contained orthotolidine, and that
this was a “material failure of proof
on the part of Plaintiff whereas Defendants presented a more persuasive and
coherent body of the evidence to the contrary [showing the presence of OTO
dihydrochloride].†(Emphasis added.)
Plaintiff appealed from the judgment
entered in favor of defendants.
name="_ftnref7" title="">[7]
C. Standard of Review
The selection of the correct standard of review on appeal
depends upon the question or questions before the court. Defendants argue that “the issue dispositive
of [plaintiff’s] appeal . . . is whether substantial evidence
supports the superior court’s finding that the products contained no
orthotolidine.†Plaintiff argues there
are two questions on appeal: (1)
whether, in the Proposition 65 context, the term “chemical†should be construed
broadly to include different iterations of a chemical compound where the
chemical’s core carcinogenic structure exists in both iterations, and (2)
whether the trial court erred in determining that plaintiff had not proven that
defendants’ products contained the carcinogen orthotolidine.
Stated
more generically, the first question posed is whether the trial court erred in concluding
that because plaintiff failed to prove defendants’ products contained
orthotolidine, as alleged in the complaint, rather than orthotolidine
dihydrochloride as proven by defendants, there was a “material failure of
proof†warranting dismissal. We agree
that this question is central to the appeal, and is an issue of law to be
reviewed de novo. (California Teachers Assn. v. San Diego Community College Dist. (1981)
28 Cal.3d 692, 699.)
II. DISCUSSION
Defendants’ Contention
Defendants’
contention concerning the requirements for pleading and proof of a Proposition
65 violation is brief; we quote it here:
“Prelitigation notices and complaints must identify exactly the chemical
in the consumer product that allegedly triggered a warning obligation. The Proposition 65 regulations require ‘the
name of each listed chemical involved
in the alleged violation.’ (Cal. Code
Regs., tit. 27, § 25903 subd. (b)(2)(A)4, emphasis added; see [
973[).] . . . The complaints on which [plaintiff] went to trial
were based on [two different] prelitigation notices, but charged only
orthotolidine as a chemical present in the products without warning.
. . . [¶] [Plaintiff] failed to make a prima facie showing that
respondents’ products contain orthotolidine.â€
Defendants’ argument conflates two
different questions, which are: (1) the
adequacy of a prelitigation notice, and (2) the requirements for pleading and
proving a prima facie case under Section 25249.6. We examine each, in turn.
As we have described, the
Proposition 65 regulations require a private plaintiff to serve a prelitigation
notice, and in that notice to identify “[t]he name of each listed chemical
involved in the alleged violation.†(Cal.
Code Regs., tit. 27, § 25903, subd. (b)(2)(A)4.) The identification of each chemical as to
which the plaintiff intends to sue is necessary to serve the purposes of the
prelitigation notice, which are: (1) to
give the public prosecutor the means to assess whether to intervene on the
public’s behalf, and (2) to give the target of the notice the opportunity to
avoid litigation by settling with the plaintiff or by curing any violation. (Kintetsu,
supra, 150 Cal.App.4th at pp. 963–964.) Thus, for example, in Kintetsu some of the pre-litigation notices alleged exposure to smokeless
tobacco and cigars but did not differentiate the chemicals in each product, and
the record did not show whether the chemicals were the same in both, as argued
by the plaintiff. Under the
circumstances, the court ruled the plaintiff “may proceed only with respect to
those chemicals contained in the notice [but to] the extent they are the same,
no need exists to list them twice.†(
permitted to identify one chemical in the prelitigation notice, such as toluene,
and then to sue upon an entirely different or additional chemical, such as dioxin. “Because of their different properties,
different chemicals raise very different issues in determining whether there is
a violation.†(Office of Environmental
Health Hazard Assessment (OEHHA), Final Statement of Reasons: Adopt Section 12903, Notices of Violation,
Title 22, Division 2, California Code of Regulations [now at tit. 27,
§ 25903], available online at <http://oehha.ca.gov/prop65/law/pdf_zip/903FSR.pdf.>
at p. 9. [as of Nov. 1,
2013].)
Defendants, however, take these
tenets even further. They argue that “[p]relitigation
notices and complaints must identify exactly
the chemical . . . that allegedly triggered a warning obligation.†(Emphasis added.) But the requirement of exactitude is not
found in the regulation or in any authority construing it. What the regulation does state is that the
notice “shall provide adequate information from which to allow the recipient to
assess the nature of the alleged violation,†and that its requirements “shall
not be interpreted to require more than reasonably clear information, expressed
in terms of common usage and understanding, on each of the indicated
topics.†(Cal. Code Regs., tit. 27, § 25903,
subd. (b)(2).)
Fortunately, we need not engage in
calibrating the level of precision required to meet the notice requirement
because that is not the question before us.
Defendants do not claim that the
identification of orthotolidine in the notices failed to provide adequate
information to allow defendants and the attorney general to “assess the nature
of the alleged violation.†(Cal. Code Regs.,
tit. 27, § 25903, subd. (b)(2).) Nor
do they contend that the notice was so deficient that “[n]either settlement nor
an official investigation [was] likely to result.â€
(Yeroushalmi
v. Miramar
88 Cal.App.4th 738, 750.) Defendants’ contention,
rather, is that plaintiff did not prove exactly
what it pled—that defendants’ products contain orthotolidine—and therefore
their case fails as a matter of law. In
so arguing, defendants simply import into pleading and proof requirements their
own strict interpretation of what is required for the prelitigation
notice. We disagree with this
analysis. There is no authority for the
proposition that prelitigation notice requirements also control the principles
of pleading and proof in a Proposition 65 case, and, as we explain, we see no
reason in such actions to deviate from the general principles of pleading and
proof applicable to civil cases.
B. Prima Facie Evidence of Proposition 65
Violation
We start with basic principles
pertinent to Proposition 65.
It is well-established that the
purpose and intent of Proposition 65 is to protect the public from toxic
contamination, and it must be construed broadly to accomplish that
purpose. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 314–315
(Lungren) [“[W]e consider Proposition 65 to be a
remedial statute intended to protect the public from, among other things, toxic
contamination of its drinking water. We
construe the statute broadly to accomplish that protective purpose.â€].) Consequently, our courts have uniformly
applied a liberal construction when assessing various issues arising under
Proposition 65. (See, e.g., California
196 Cal.App.4th 233 [methods for listing chemicals]; Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 461–462
[exposure to product containing reproductive toxin]; As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 451 (
medium’ †in regulation].)
“Proposition
65 adopts a dual-pronged approach based on protection and information. The Act
accomplishes these twin objectives by prohibiting any person in the course of
doing business from knowingly discharging or releasing a listed toxic chemical
into a source of drinking water (discharge provision) or from knowingly and
intentionally exposing any individual to such chemicals without first providing
a warning (warning requirement).†(
437.) Additionally,
the statutory scheme “establishes a series of shifting burdens.†(Mateel
Environmental Justice Foundation v. Edmund A. Gray Co. (2003)
115 Cal.App.4th 8, 18 (Mateel).) Thus, in an action to enforce the discharge
provision (section 25249.5), “[i]n the first instance, a plaintiff must show
that a discharge has occurred. Once this
burden has been met, the defendant may show, inter alia, that the amount of the
discharge is not significant [pursuant to section 25249.9].†(See ibid.;
As You Sow, supra, 135 Cal.App.4th at
p. 437.) By parity of reasoning, in an
action to enforce the warning requirement
(section 25249.6), a plaintiff must show, in the first instance, that a
defendant’s product exposed individuals to a listed chemical without a
warning. Once that burden is met, a
defendant may prove the warning is not required by showing,
poses no significant risk, pursuant to section 25249.10.
We find nothing in the provisions of
Proposition 65 or its regulations that requires or even suggests that a
Proposition 65 claim fails as a matter of
law if the chemical identified in the complaint is not “exactly†the same
chemical contained in defendants’ products.
Nor has our research unearthed any case construing section 25249.5 et
seq. that imposes any particularized
proof standards. We therefore look to
the general standards of pleading and proof.
It is a fundamental principle of
civil jurisprudence that “[n]o variance between the allegation in a pleading
and the proof is to be deemed material, unless it has actually misled the
adverse party to his prejudice in maintaining his action or defense upon the
merits.†(Code Civ. Proc., § 469;
Cal.App.4th 1559, 1572.) Thus, the
correct question is not whether plaintiff can prove defendants’ products
contain the precise carcinogen
alleged in the complaint, but whether plaintiff can prove that defendants’
products exposed individuals to a listed chemical without a warning, and did
not mislead the defendants to their prejudice as to the nature of their
claim. Defendants offer no basis for
applying a more exacting standard in a Proposition 65 case, and we can divine
no policy reason to set a higher bar. To
the contrary, a more rigid interpretation of the proof requirements for a
Proposition 65 action could well frustrate its remedial purpose—protection of
the public from toxins—by blocking an enforcement action based on a technical
dispute as to the precise form of a chemical where the difference is not
relevant for purposes of a prima facie violation of Proposition 65. “A court should not adopt a statutory
construction that will lead to results contrary to the Legislature’s apparent
purpose.’ [Citation.]†(Lungren,
supra, 14 Cal.4th at p. 305.)
The cases construing Proposition 65
support this commonsense approach. Our
courts regularly interpret the provisions of the statute and the regulations
reasonably, and reject attempts by both enforcers and businesses to impose
higher proof standards. (See, e.g.,
[court rejected defendant’s attempt to hold a plaintiff to an inappropriate
standard of testing for lead]; Baxter
Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333, 364–368 (
to require alleged violator to prove affirmative defense by clear and
convincing evidence]; Exxon Mobil Corp.
v. Office of Environmental Health Hazard Assessment (2009) 169 Cal.App.4th
1264, 1278–1285 [court rejected an attempt by potential violators to remove a
chemical from the list by applying an overly strict interpretation of the
regulations governing listing]; DiPirro
v. Bondo Corp. (2007) 153
Cal.App.4th 150, 190–192 [court upheld defense where defendant proved no
observable effect of chemical on 75 to 85 percent of the population, and
rejected as “extreme†plaintiff’s proffered standard of no effect on “ ‘any
consumer’ â€].)
Defendants also assert, without
citation to authority, that because plaintiff did not seek leave to amend the
complaints after learning that defendants claimed their products contain OTO
dihydrochloride (as opposed to OTO), the “issue dispositive of [plaintiff’s]
appeal†is whether substantial evidence supports the trial court’s finding that
plaintiff failed to prove that defendants’ products contain OTO. This argument merely restates in different
procedural terms the trial court’s formulation of the “core issue†to be
tried—whether defendants’ products contain orthotolidine, vel non. But the question
raised by plaintiffs below and on appeal is whether that formulation is
erroneous because it rests on too rigid an interpretation of the statute for
purposes of proving a Proposition 65 violation.
Rather than addressing that question, defendants assert, without more,
that a failure to amend means plaintiff must prove exactly what it pled. As has
been discussed, this is not a correct statement of the law.
In sum, we reject defendants’
contention and the trial court’s requirement that a Proposition 65 plaintiff
must prove that the chemical alleged in the complaint is the
products. Rather, a plaintiff can meet
its burden if the evidence as a whole establishes a violation of the statute,
unless there is a material variance between the pleading and the proof.
requirements and the protective goals of Proposition 65.
We turn now to a review of the
evidence to determine whether plaintiff has satisfied this burden.
The Evidence at Trial
name="_ftnref11" title="">[11]
As we have stated, the trial court
set for hearing the narrow issue of “whether or not [defendants’] products
contain the chemical [ortho-Tolidine].â€
Consequently, the parties’ evidence related only to that scientific
question.
1. Matters of Agreement
We begin by summarizing the
substantial areas of agreement between the parties.
Defendants’ products are designed to measure the chlorine
levels in swimming pools and spas. Their
manner of use was described by the vice president and a founder of one of the
defendants: “The vial for testing the
chlorine content of pool or spa water is filled [with that water] to a level
that’s marked on the vial. Then five
drops of . . . what we commonly called the OTO solution are dropped
into the vial, the cap is replaced on the vial, the vial is inverted a few
times so the mixture is mixed. And there
is a color comparison between the water [in] the vial and what are called the
colored chips on the side of the vial.
And that gives a reading on the chlorine content of the water and
whether or not more chlorine is needed.â€
The chemical formula for
orthotolidine is C14H16N2 (14 carbon atoms, 16
hydrogen atoms, and two nitrogen atoms).
Orthotolidine is an “aromatic amine†the elements of which are bonded “covalently,†that is, they
have very strong bonds. The formula for
orthotolidine dihydrochloride is C14H16N2.2HCL. Thus, the two formulas are the same, except
the dihydrochloride form of OTO has an addition of .2HCL. The “.2HCL†indicates the presence of
hydrochloric acid which has a weak, or “ionic,†bond to the orthotolidine
molecule. Because of the ionic bond, the
.2HCL portion of OTO dihydrochloride “dissociates†when the solid form of the
dihydrochloride is placed in a liquid solution, while the covalently bonded C14H16N2—or
orthotolidine—remains intact.
In an aqueous acidic solution, the
hydrogen protons from the HCL or acid attach to the orthotolidine in a
transitory manner; this is described as moving on and off, or “hopping on and
off†the orthotolidine molecules very rapidly.
The orthotolidine is then said to be “protonated.†Therefore, in an acidic aqueous solution,
such as in defendants’ products (which contain hydrochloric acid), orthotolidine
exists in the protonated form. The
chloride (.2HCL) remains in the solution, but is dissociated from the OTO.
The frequency of the protonation
depends on the pH of the solution. At a
highly acidic pH of about three the OTO will be protonated almost all of the
time; at a more basic pH of about six (in plain water) the OTO will not be
protonated at all. The result is the
same whether OTO or OTO dihydrochloride is placed in solution. In defendants’ products, which are highly
acidic, both will become protonated OTO, meaning that the OTO molecules will
almost always have hydrogen protons with transient bonds. If, however, either OTO or OTO
dihydrochloride are placed in a very basic solution, they “end up fully as the
free base [OTO].†According to
defendants’ expert, one can start with OTO, convert it to OTO dihydrochloride
by placing it in a highly acidic solution, and then reconvert it to OTO by
making the solution basic.
Orthotolidine and the
dihydrochloride form have different solubility, corrosivity and melting
points. The dihydrochloride form is more
corrosive because it is acidic. The
hydrochloride is added for the purpose of making OTO highly soluble. The two compounds also have “different
spectra in NMRâ€
title="">[13] and
absorb light in the ultraviolet spectrum at a different frequencies.
2. Matters of Disagreement
a. What is the proper testing method?
The Environmental Protection Agency
has approved an analysis known as Method 8270C to test for the presence of
orthotolodine in media (soil, water, etc.).
of defendants’ products using this method showed the presence of
orthotolidine. This method does not
distinguish between the protonated and unprotonated forms of OTO because,
during the preparation of the solution for analysis, the pH is changed from
acid to a base which changes any protonated form of OTO into its unprotonated,
or neutral, form in order to extract it from the solution for analysis. According to plaintiff’s expert this method
is the proper one to use to determine the presence of OTO because it was
designed to identify the presence of OTO in any medium, such as water that is
acidic or basic, including in defendants’ aqueous acidic products.
According to defendants’ expert,
method 8270C cannot distinguish between orthotolidine and OTO dihydrochloride,
and therefore was “completely inappropriate†to determine which of the two
chemicals was present in defendants’ products.
Thus, if OTO dihydrochloride is present in an acidic solution, the test
method, by making the solution basic, chemically alters the OTO dihydrochloride
and changes it into the free amine (orthotolidine). As a result, a test using Method 8270C can
show the presence of orthotolidine even if the original sample—before the pH
was adjusted in preparation for extraction—contained only OTO
dihydrochloride.
Plaintiff’s expert explained,
however, that altering the pH before extracting the OTO does nothing that would
not otherwise have occurred naturally.
As he explained, due to the nature of ionic bonds and applying Le
Chatelier’s Principle—by which chemical equilibrium will continue to adjust
itself after any extraction or dilution occurs—“if you just shook the
extraction flask up and didn’t adjust the pH and let it sit for hours, maybe
days . . . this neutral form would be what you end up with in the
extraction solvent.†He testified that
Method 8270C was designed to take the differences between OTO and OTO
dihydrochloride into account, “[a]nd the pH adjustment just makes it faster and
more uniform in how it behaves.â€
According to defendant’s expert, NMR
and UV spectroscopy were appropriate tests for the presence of orthotolidine or
OTO dihydrochloride in solution because they do not change the nature of the
solution. His laboratory tested
defendants’ products using NMR, and the test results showed the products
contained the dihydrochloride form of OTO, but none of the free amine (OTO)
form at all. Although the experts agreed
that the molecules in solution shifted very rapidly from the protonated to unprotonated
form, defendant’s expert testified that at any point in time the amount of the
unprotonated form—or orthotolidine—was below the detection limit of the NMR
experiment. Based on theoretical calculations,
he estimated the amount of the unprotonated form in solution at any point in
time was .001 percent of the solution. A
second defense expert offered similar opinions:
that NMR spectroscopy is “uniquely suited to analyze molecules in
solution[,]†and the NMR tests would have detected the free base form of orthotolidine
if it had been present, but showed only the dihydrochloride form and none of
the free base form.
b. Is protonated orthotolidine the same as
orthotolidine dihydrochloride?
Another area of dispute was whether
the protonated form of orthotolidine—the form existing in defendants’ acid
solution—is the same chemical as orthotolidine dihydrochloride. Plaintiff’s expert testified that
orthotolidine dihydrochloride cannot
be present in an aqueous solution but can only exist in its solid form. He testified that, once OTO dihydrochloride
is dissolved in solution, it loses its structure, and what remains intact is
the covalently bonded orthotolidine molecules, having only transitory bonds to the
HCL protons (i.e., the protonated form of orthotolidine), with chloride atoms
present in the solution but completely dissociated from the OTO.
Defendants’ expert, on the other
hand, testified that in the acidic environment of defendants’ products, the
protonated form of OTO is the same as orthotolidine dihydrochloride. Even though in its solid form, orthotolidine
dihydrochloride did not “have protons hopping on and off of it,†the expert
opined, it was the same chemical as protonated orthotolidine in solution, when
protons did “hop on and off the Orthotolidine,†because in both the solid form
and in solution, the chemical was protonated.
They were the same compound in different physical forms. In the solid form, he testified, “[t]he
hydrogens are attached to the nitrogen and the chlorides are nearby,†fixed in
position, but not attached. In solution,
the chlorides are dissociated or “floating around hydrated,†with the same
number of chlorides as in the solid form.
The distance between the nitrogen and the chlorine would depend on the
concentration of the solution.
name="_ftnref16" title="">[16]
Defendant’s expert could not state,
however, whether the utility of defendants’ products in detecting the amount of chlorine in water would be
different depending upon whether it contained OTO or OTO dihydrochloride; he
also could not state to what degree the addition of the product to the pool
water would change the pH of the OTO, but agreed it would change toward neutral
(unprotonated).
title="">[17]
In rebuttal, plaintiff’s expert
testified that in solution, the chloride and the protonated molecules were so
far apart that it “conceptually doesn’t really make sense†to say the positive
and negative charges maintained an ionic association. He disagreed with the defendant’s experts,
explaining, “you can’t have association and dissociation at the same time. When the molecules are put into water the
chlorides dissociate completely, they’re free to move throughout that
solution,†and therefore OTO dihydrochloride cannot exist in solution.
c. No testimony on materiality of differences
There was a total absence of
testimony on the subject of whether the differences between the two forms of
orthotolidine, as described by defendants, would or would not have a material
impact on the carcinogenicity of defendants’ products for purposes of prima
facie proof of a Proposition 65 violation.
We assume none was offered because the trial court’s restrictive
formulation of the issue to be tried—the sole question being whether the
chemical in defendants’ products was orthotolidine—precluded the introduction
of any such evidence.
name="_ftnref18" title="">[18]
3. Other Evidence
In addition to the expert testimony,
the parties offered the following evidence:
a. The Governor’s list
Both OTO and OTO dihydrochloride are
listed on the Governor’s Proposition 65 list as carcinogenic. OTO was placed on the list in 1988, based on
the opinion of the Proposition 65 Scientific Advisory Panel of the California
Health and Welfare Agency, after reviewing various documents, including the
National Toxicology Program’s Fourth Annual Report on Carcinogens. (§ 25249.8
subd. (b).) OTO dihydrochloride was
placed on the Governor’s list in 1992, based upon the lead agency’s conclusion
that an “authoritative bodyâ€â€”here the National Toxicology Program (NTP)—had
formally identified OTO dihydrochloride as causing cancer. (§ 25249.8 subd. (b); Cal. Code
Regs, tit. 27, § 25306.) There is
no evidence that the method used by the agency to list a particular chemical
has any significance.
The chemicals are listed by name and
also by their “CAS†numbers. This refers
to the Chemical Abstract Service, which was created to “make it easier for
chemical researchers to find work relating to their own work.†Neither party’s experts assigned particular
significance to the fact that OTO and OTO dihydrochloride had different CAS
numbers.
title="">[19]
b. The NTP
Fourth Annual Report on Carcinogens
This undated report states there is
evidence of carcinogenicity of OTO in animals.
pigments and other products, including in swimming pool chlorine test
kits. The report states that exposure to
OTO can be through dermal absorption or ingestion if the test solutions are
emptied into the pool. The report also
describes the amounts of OTO and “its
dihydrochloride†that have been produced and imported in 1978, 1979 and 1980.
c. The Merck index
The 2006 version of the Merck Index
(Fourteenth Edition), Monograph number 09514 identifies 3,3’-dimethylbenzidine
as “o-Tolidine†and includes
“Dihydrochloride†as a “Derivative Type†of OTO.
d. The IARC monograph
In 1972, the International Agency
for Research on Cancer (IARC) issued a monograph describing the carcinogenic
properties of various chemicals, including “3,3’-dimethylbenzidine
(o-tolidine).†The monograph
describes OTO as “a weak base that forms salts with HCl . . . etc.,â€
and states it is used, among other things, for the “colorimetric determination
of chlorine in air and water.†The IARC
report concluded there was a “suspicion†of carcinogenicity, but supporting
evidence was not available.
e. The federal occupational standards
In 1978 the National Institute for
Occupational Safety and Health (NIOSH) issued a report providing “criteria for
a recommended standard . . . occupational exposure to
o-Tolidine.†It states that o-tolidine
is used, among other things, in tests for chlorine in water, and that “the term ‘o-tolidine’ refers to
“various physical forms of the compound and its salts.†It further states that skin contact with
o-tolidine “shall be avoided.†Although adherence to specific NIOSH standards
is required if OTO is handled or stored in sealed containers, those standards
do not apply to users of “test kits containing o-tolidine.â€
f. The Office of Environmental Health Hazard Assessment
report
In 2002, OEHHA published a report
setting “No Significant Risk Levels (NSRLS) For the Proposition 65 Carcinogens
3,3’-Dimethylbenzidine and 3,3’-Dimethylbenzidine Dihydrochloride.†The report reviewed various studies and their
findings, assessing the results of tests conducted with OTO and with OTO
dihydrochloride as a group. The OEHHA
concluded that the cancer potencies (“mg/kg-dayâ€) of OTO and OTO
dihydrochloride are, respectively, 16 and 12, and their NSRLs are,
respectively, 0.044 and 0.059 “µg/day.â€
test in which male rats were exposed to OTO dihydrochloride via drinking
water. “The cancer potency estimate
obtained from studies of [OTO dihydrochloride] was used as the basis for [OTO]
cancer potency after adjusting for differences in molecular weight.â€
g. Defendants’ product labels and recipes
The defendants’ products are
uniformly labeled as containing orthotolidine or OTO, not orthotolidine dihydrochloride.
defendants’ recipes for “OTO†or “OTO #1 Solution†the ingredients for which
are deionized water, orthotolidine powder and hydrochloric acid.
for the product called “Aqua Chem OTO†which is described as “Ortho-tolidine
dihydrochloride solution†and identifies the ingredients as Hydrochloric acid
and Orthotolidine.
D.
Analysis
The trial court ruled that plaintiff
did not prove defendants’ products contained orthotolidine because defendants
“presented a more persuasive and coherent body of evidence†showing that the
chemical was orthotolidine dihydrochloride.
We agree with defendants that this finding is supported by substantial
evidence. This fact, however, is not
dispositive. The question remains
whether this was a “material failure of proof†of the alleged violation of
Proposition 65.
The evidence at trial indisputably
demonstrates that defendants’ products contain a “listed chemical.†Yet it took two years of litigation,
including a two-day trial with contested expert opinions before the question
“what’s in the bottle?†could be answered.
This is not surprising, given that defendants themselves labeled their
products as containing orthotolidine, and the evidence at trial showed the two
chemicals are more similar than they are different: Orthotolidine
dihydrochloride is the “salt form†or “the dihydrochloride form†of
orthotolidine; both have the same core chemical structure, which remains intact
in solution; both become “protonated orthotolidine†when in a highly acidic
solution, such as found in defendants’ products; both can be converted from protonated to
unprotonated—according to defendants—simply by changing the pH of the solution
in which they are placed; and both chemicals are carcinogens. Significantly, OEHHA estimated the cancer
properties and NSRLs for both forms of orthotolidine in a single report,
setting the cancer potency estimate for OTO based on a study of OTO
dihydrochloride. Thus, the agency tasked
with enforcing Proposition 65 appears to treat the two forms of orthotolidine
as the same carcinogen and it assigned to them different NSRLs based
weight.
These nuanced distinctions between
orthotolidine and its dihydrochloride, coupled with defendants’ own evidence
that its products contain a listed chemical, demonstrate there was not a
“material failure of proof†for purposes of Proposition 65. But due to the trial court’s restrictive
formulation of the dispositive issue—do defendants’ products contain
there was a material variance between pleading and proof did not and could not
arise. Wholly absent from the trial court’s expression of the “core issue†was
whether the distinction between orthotolidine and its dihydrochloride was
meaningful either for purposes of Proposition 65 or for purposes of defendants’
due process rights. Indeed, the court expressly
rejected plaintiff’s argument that Proposition 65, as a remedial statute, necessitated
more liberality in testing the sufficiency of plaintiff’s proof; it concluded,
instead, that plaintiff’s burden was to prove that defendants’ products
contained orthotolidine, and if it
could not, defendants were entitled to judgment. The court’s formula left no room to consider whether
plaintiff’s proof was or was not a material variance from its pleading.
As we have explained, to be
material, a variance must have misled defendants to their prejudice in
maintaining their defense on the merits, or put another way, “ ‘misled
[them] as to the real issues of fact involved in the case.’ †(Frazier
v. Yor-Way Market, Inc. (1960) 185 Cal.App.2d 390, 399; Code Civ. Proc.,
§ 469.) We cannot say on this
record and in the first instance whether defendants were misled to their
prejudice by plaintiff’s allegations. We
must therefore remand the matter so the parties will have the opportunity to
present argument, and any relevant evidence, that the proof was or was not a
material variance from the pleading, in the context of Proposition 65 and its
remedial purposes.
name="_ftnref28" title="">[28]
III.
DISPOSITION
The judgment is reversed, and the
matter is remanded for proceedings consistent with this opinion. The post-judgment orders are vacated.
_________________________
Rivera,
J.
We concur:
_________________________
Ruvolo,
P.J.
_________________________
Humes, J.
name="_ftn1" title=""> [1]
All undesignated statutory references are to the Health and Safety Code.
name="_ftn2" title=""> [2] The parties
agree that the defendants remaining at the time of trial were Aqua Tri, Chem
Lab Products, Inc., Home Depot U.S.A., Inc., Leslie’s Poolmart, Inc., Oreq
Corporation, Poolmaster, Inc., Pool Water Products, and Valterra Products, Inc.
