Tugade and Mahoney secure an outright dismissal of DAR’s client

Edward P. Tugade and Kelley T. Mahoney of Demler, Armstrong & Rowland, LLP’s San Francisco office successfully secured an outright dismissal of their client, a small, family-owned manufacturer and distributor of wood products based out of Wisconsin, who had been sued in a Proposition 65 enforcement action in California. Plaintiff alleged their client had failed to provide adequate warnings to California consumers related to “wood dust” contained in one of its products, pursuant to California Health & Safety Code section 25249.6.  Under California Health & Safety Code section 25249.7, a private citizen may bring an action in the “public interest” to enjoin the distribution of a product in California that does not contain adequate warnings regarding certain chemicals, including “wood dust,” listed on the Proposition 65 list.  If an entity is found to have violated California Health & Safety Code section 25249.6, it may be subject to civil penalties of up to $2,500 a day for each violation, in addition to Plaintiff’s attorneys’ fees and costs for the suit. 

The defense successfully argued that their client, a Wisconsin corporation whose business operations are limited exclusively to the Midwest, is not subject to personal jurisdiction in California, as it has never been registered or qualified to do business in California, has never owned, operated, leased, maintained, or otherwise possessed, occupied, or controlled any offices, manufacturing facilities, or distribution operations in California, has no employees or agents in California, has never advertised or marketed its products in California or to potential customers in California, and has never manufactured, sold, supplied, shipped, or distributed its products in, into, or through California.  Further, Defendant pointed out, absent any deliberate, purposeful, or voluntary act of her client directed to California or a resident of California, the mere fact that Defendant’s product may have ultimately ended up in California was insufficient to subject it to personal jurisdiction in California.  Ultimately, Plaintiff agreed and dismissed the Wisconsin based Defendant.