DiPIRRO v. BONDO CORPORATION
Filed 8/8/07
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
MICHAEL DiPIRRO, Plaintiff and Appellant, v. BONDO CORPORATION, Defendant and Appellant. | A110913 (Super. Ct. No. 01-032519) ORDER MODIFYING OPINION [NO CHANGE IN JUDGMENT] |
THE COURT:
It is ordered that the opinion filed herein on July 12, 2007, be modified in the following particulars:
1. The third sentence of the first full paragraph on page 23 is modified by deleting the word First, so that the sentence will now read:
The essential character and purpose of the Act is equitable.
2. The first two lines on page 24 containing the Consumer Causecitation are modified by adding the point page 462. The rest of that paragraph starting with The Act is deleted. The citation, which will end the paragraph, will now read:
(Consumer Cause, Inc. v. SmileCare (2001) 91 Cal.App.4th 454, 461462 [110 Cal.Rptr.2d 627].)
3. In the first full paragraph on page 24, the sentence beginning with Both the listing of a chemical is modified by deleting the sentence and inserting in its place the sentence An action that seeks to enforce the consequences of the listing of a chemical fundamentally seeks a form of declaratory reliefthat the product requires a warning under the Actwhich is equitable in nature and does not carry with it the guarantees of a jury trial. The paragraph will now read:
The foremost consideration before us is that the remedies sought through an enforcement action under the Act are equitable in nature. Determining whether the gist of a claim is in law or equity depends in large measure upon the mode of relief to be afforded. [Citation.] (Asare v. Hartford Fire Ins. Co., supra, 1 Cal.App.4th 856, 867; see also Martin v. County of Los Angeles (1996) 51 Cal.App.4th 688, 697 [59 Cal.Rptr.2d 303].) An action that seeks to enforce the consequences of the listing of a chemical fundamentally seeks a form of declaratory reliefthat the product requires a warning under the Actwhich is equitable in nature and does not carry with it the guarantees of a jury trial. (See Andal v. City of Stockton (2006) 137 Cal.App.4th 86, 91 [40 Cal.Rptr.3d 34]; Caira v. Offner, supra, 126 Cal.App.4th 12, 2627; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1241 [19 Cal.Rptr.3d 416]; Baxter Healthcare Corp. v. Denton, supra, 120 Cal.App.4th 333, 357358.)
There is no change in the judgment.
Dated: August 8, 2007 _________________________
Stein, Acting P. J.
Trial Court | Alameda County Superior Court |
Trial Judge | Honorable Bonnie L. Sabraw |
For Plaintiff and Appellant | DellArio & LeBoeuf, PC Jacques LeBoeuf, Esq. Chanler Law Group Clifford A. Chanler, Esq. |
For Defendant and Appellant | Nossaman, Guthner, Knox & Elliott, LLP Carol Ren Brophy, Esq. Patrick J. Richard, Esq. Deborah E. Beck, Esq. |
Amicus curiae | Bill Lockyer and Edmund G. Brown, Jr., Attorneys General Tom Greene, Chief Assistant Attorney General Theodora Berger, Senior Assistant Attorney General Edward G. Weil, Supervising Deputy Attorney General Susan S. Fiering, Deputy Attorney General |
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