Petition for Writ of Certiorari — ConAgra Grocery Products Company, et al., Petitioners v. California
Supreme Court briefJul 16, 2018
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APPENDIX
TABLE OF APPENDICES
Appendix A
Opinion, Court of Appeals of the State of
California, Sixth Appellate District,
People v. ConAgra Grocery Products, Co.,
No. H040880 (Nov. 14, 2017) ...................... App-1
Appendix B
Relevant Docket Entries, Supreme Court
of California, People v. ConAgra Grocery
Products, Co., No. S246102 ..................... App-183
Appendix C
Amended
Statement
of
Decision,
Superior
Court
of
California,
County
of
Santa
Clara,
People
v. ConAgra Grocery Products, Co.,
No. 1-00-cv-788657 (Mar. 26, 2014) ........ App-185
Appendix D
Opinion, Court of Appeals of the State
of
California,
Sixth
Appellate
District, County of Santa Clara v.
Atlantic Richfield Co., No. H026651
(Mar. 3, 2006)........................................... App-345
Appendix E
Constitutional and Statutory Provisions
Involved.................................................... App-420
U.S. Const. amend. I ......................... App-420
U.S. Const. amend. XIV, §1 .............. App-420
Cal. Code Regs. tit. 17, §35043 ......... App-420
App-1
Appendix A
IN THE COURT OF APPEAL OF
THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
________________
No. H040880
________________
THE PEOPLE,
Plaintiff, Cross-Defendant
and Respondent,
v.
CONAGRA GROCERY PRODUCTS CO., et al.,
Defendants and Appellants;
THE SHERWIN-WILLIAMS CO., et al.,
Defendant, Crosscomplainant and
Appellant.
________________
Santa Clara County
Superior Court No. CV788657
________________
Filed: November 14, 2017
________________
OPINION
________________
After a lengthy court trial, the People of the State
of
California
(plaintiff)
prevailed
in
this
representative public nuisance action against
App-2
defendants ConAgra Grocery Products Company
(ConAgra), NL Industries, Inc. (NL), and the SherwinWilliams Company (SWC).1 The trial court ordered
ConAgra, NL, and SWC to pay $1.15 billion into a fund
to be used to abate the public nuisance created by
interior residential lead paint in the 10 California
jurisdictions represented by plaintiff. ConAgra, NL,
and SWC (collectively defendants) challenge the
court’s judgment on many grounds. They contend,
among other things, that the court’s judgment is not
supported by substantial evidence of knowledge,
promotion, causation, or abatability. Defendants also
challenge the judgment on separation of powers and
due process grounds, claim that they were erroneously
denied a jury trial, and assert that the trial court made
other prejudicial procedural and evidentiary errors.2
We conclude that the trial court’s judgment must be
reversed because substantial evidence does not
support causation as to residences built after 1950. We
also direct the trial court to hold further proceedings
on remand regarding the appointment of a suitable
receiver. We reject the remainder of defendants’
contentions.
1 Plaintiff’s action was brought on behalf of the residents of
Santa Clara County, San Francisco City and County, Alameda
County, Los Angeles County, Monterey County, City of Oakland,
City of San Diego, San Mateo County, Solano County, and
Ventura County. In this opinion, we will refer to these two cities,
seven counties, and one city and county as the 10 jurisdictions.
2 This is but a partial list of their contentions. SWC and
ConAgra also each assert an individual contention.
App-3
I.
Plaintiff’s Evidence At Trial
“[L]ead is a toxin and causes irreversible brain
damage.” Childhood lead poisoning is “the number one
environmental health problem for children” in
California. “Childhood lead poisoning at the level at
which it is occurring is definitely an epidemic in
California.” “The most common source of lead
exposure to children in California is lead-based paint
and how it contributes to soil and dust contamination
in and around housing.”3 Experts have reached a
consensus “that lead-based paint is a predominant
source of childhood lead exposure [in] pre-1978
housing.”4 Children in pre-1946 housing are subject to
“three times the percentage of elevations in blood lead
level” as those in post-1978 housing. Lead in homes
accounts for at least 70 percent of all childhood lead
poisonings. Lead paint is a major contributor to blood
lead levels because the lead content of paint is high,
while most other lead sources have only trace
amounts. And the most common type of lead paint
contains white lead carbonate, which is highly
absorbable. Between 1929 and 1974, more than 75
3 “Lead-based paint” is not the only source of childhood lead
exposure. Children in the 10 jurisdictions have also been exposed
to lead from occupational sources (such as lead dust brought
home by construction workers), leaded gasoline, imported goods
(such as pottery, Mexican candy, and toys), home remedies (such
as “Greta” and “Azarcon”), cosmetics, jewelry, spices, and
chapulines (grasshoppers).
4 “‘Lead-based paint’ means paint or other surface coatings that
contain an amount of lead equal to, or in excess of: [¶] (a) one
milligram per square centimeter (1.0 mg/cm2); or [¶] (b) half of
one percent (0.5%) by weight.” (Cal. Code Regs., tit. 17, § 35033.)
This is what we mean when we use “lead paint” in this opinion.
App-4
percent of the white lead carbonate produced in this
country was used in lead paint. Through the 1940s,
lead paint contained as much as 50 percent lead.
“Children are exceptionally vulnerable” to lead
because “they explore their environment with typical
hand-to-mouth contact behavior.” Lead paint chips
“taste sweet,” which may explain why children ingest
them. Young children are at especially high risk from
residential lead paint because they spend the vast
majority of their time in their homes. Infants and
young children also absorb much more lead than older
children and adults. Because children are smaller,
lead intake has a proportionally larger impact on their
bodies, and children absorb lead more easily. Children
are also more vulnerable to the toxic effects of lead
because their biological systems are still developing.
The “brain effects [of lead exposure] in children
are irreversible,” so the “only option is to prevent the
exposure in the first place.” There is “no safe exposure
level” for lead “[b]ecause no measurable level of lead
in blood is known to be without deleterious effects, and
because once engendered the effects appear to be
irreversible.” Blood lead levels less than 5 micrograms
per deciliter (mcg/dL)5 can cause children to suffer
impaired intellect and behavioral problems.6 “[E]ven
among children with the lowest levels of lead
exposure,” studies suggest that “there is ongoing harm
down to the lowest measurable levels.” “[B]lood lead
5 A microgram (mcg) is a millionth of a gram. A deciliter (dL) is
a tenth of a liter.
6 Bone lead levels are a better indicator than blood lead levels
of the impact of lead on intellectual abilities. Blood lead levels
may underestimate the impact of lead exposure.
App-5
levels below 5 micrograms per deciliter are associated
with decreased academic achievement, diminished IQ
scores, or intellectual abilities, cognitive abilities,
attention-related behavior problems and antisocial
behaviors . . . .” Lead exposure as a child continues to
impact the body when the child becomes an adult. It
“has reproductive effects, it has impacts on things like
birth weight, and even fertility, delays fertility,” and
it can be associated with cardiovascular disease.
Even intact lead paint poses a potential risk of
future lead poisoning to children because lead paint
surfaces will inevitably deteriorate. “[A]ll paint
eventually deteriorates. On certain surfaces it
deteriorates more rapidly than others[;] mainly those
surfaces are high-use surfaces, such as windows and
doors.” Paint deteriorates when it is exposed to
ultraviolet light, water, fungus (such as mildew),
friction, or abrasion. More than one-third of pre-1978
homes nationwide with intact lead paint have lead
dust.7 In contrast, only 6 percent of homes without
lead paint have lead dust. Lead in soil adjacent to
homes generally comes from lead paint, not leaded gas
emissions, because post-1978 housing has no soil
lead.8
“‘Lead-contaminated dust’ means dust that contains an
amount of lead equal to, or in excess of: [¶] (a) forty micrograms
per square foot (40mg/ft2) for interior floor surfaces; or [¶] (b) two
hundred and fifty micrograms per square foot (250mg/ft2) for
interior horizontal surfaces; or [¶] (c) four hundred micrograms
per square foot (400mg/ft2) for exterior floor and exterior
horizontal surfaces.” (Cal. Code Regs., tit. 17, § 35035.)
7
8 “‘Lead-contaminated soil’ means bare soil that contains an
amount of lead equal to, or in excess of, four hundred parts per
million (400 ppm) in children’s play areas and one thousand parts
App-6
Most of the housing in the 10 jurisdictions was
built before 1980, with the percentages ranging from
51 to 83 percent and is therefore presumed to contain
lead paint.9 Pre-1940 homes are three times as likely
to have lead-based paint hazards,10 with 86 percent
having lead-based paint hazards and 67 percent
having “significant” lead-based paint hazards such as
“deteriorated lead-based paint.”11 “[H]omes with leadbased paint are 10 times more likely than homes
without lead-based paint to have dust lead levels on
floors and on window sills above the federal limits.”
And “homes with lead-based paint are more likely to
have soil lead levels on the exterior of the home above
the EPA [(federal Environmental Protection Agency)]
criteria limits.” Even when lead paint is “intact,” soil
levels can exceed EPA limits. Lead paint creates soil
lead “by the friction and impact surfaces, opening and
closing windows and doors on a home with lead-based
paint,” from the deterioration of exterior lead paint,
and from “sanding and scraping” when repainting.
per million (1000 ppm) in all other areas.” (Cal. Code Regs.,
tit. 17, § 35036.)
9 “‘Presumed lead-based paint’ means paint or surface coating
affixed to a component in or on a structure constructed prior to
January 1, 1978.” (Cal. Code Regs., tit. 17, § 35043.)
“‘Lead hazard’ means deteriorated lead-based paint, lead
contaminated dust, lead contaminated soil, disturbing lead-based
paint or presumed lead-based paint without containment, or any
other nuisance which may result in persistent and quantifiable
lead exposure.” (Cal. Code Regs., tit. 17, § 35037.)
10
11 “‘Deteriorated lead-based paint’ means lead-based paint or
presumed lead-based paint that is cracking, chalking, flaking,
chipping, peeling, non-intact, failed, or otherwise separating from
a component.” (Cal. Code Regs., tit. 17, § 35022.)
App-7
When there is lead in the soil, it is often tracked into
the home, creating household lead dust.
Since the 19th century, the medical profession has
recognized that lead paint is toxic and a poison. An
1878 article by an English doctor recognized that the
use of lead paint on the interiors of homes could have
poisonous effects on the people who lived in the home.
An 1895 article by a San Francisco doctor recounted
how a child had been poisoned by lead paint that she
had scratched off her crib. A 1904 article by a doctor
in Queensland, Australia described multiple cases of
children being poisoned by lead dust from lead paint
on walls and railings of a house. He believed that the
lead dust had been ingested by the children after it got
on their fingers and thereby into their mouths. His
investigation found lead dust on interior walls where
the paint was still in “good condition.”12 An
authoritative 1907 textbook edited by a noted
American doctor, which was widely used in medical
education, discussed the 1904 article and observed
that children had been poisoned by lead paint on
woodwork in their homes that had produced lead dust
and gotten onto their hands.13 These articles
12 In 1922, Queensland, Australia banned lead paint from areas
to which young children had access.
Plaintiff presented an expert who testified that in 1909
public health officials and doctors were suggesting that there be
legislation banning lead paint due to the risk of exposure for
children. This expert cited his own 2005 article in which he
asserted that researchers had stated in 1909 that “[p]aint
containing lead should never be employed where children,
especially young children, are accustomed to play,” and “[a]
number of European countries banned lead-based paint soon
thereafter.” He also relied on a seven-page “annotated
13
App-8
“recognized the dust pathway from paint on a wall, to
dust on the floor, to the hands of children, into their
mouth[s], as a way of ingestion.”
Many medical articles by doctors in the early 20th
century described lead poisoning of children from lead
paint. A 1917 article by an American doctor discussed
the 1904 Australian article and also described the
cases of multiple children who had gnawed lead paint
off furniture and died. A 1926 article discussed the
case of a child who had died from lead poisoning after
she “gnawed” lead paint off her bed. A 1933 article
pointed out that “children get exposed to lead-based
paint in the homes by their common tendency to put
things in their mouth[s].” It also stated that most
cases involved infants and small children and that
children were more susceptible to lead poisoning than
adults. Another 1933 article noted: “It must be obvious
that for every child who becomes paralysed by lead
there must be literally hundreds who have been
affected by the poison in some more or less minor
degree.” “[T]he extent of the lead paint menace has
been minimized, and in consequence, literally
thousands of children have been allowed to run the
risks of lead absorption.”
Published medical articles in this era recognized
that even small amounts of lead could cause children
to suffer harm. A 1931 British Medical Journal article
discussed the “insidious” effects of “infinitesimal doses
of lead” over a long period of time. A 1935 American
medical journal article suggested that there were
bibliography” that he had prepared, which listed, but did not
include, numerous articles that he had reviewed.
App-9
“insidious” “cumulative effects of infinitesimal doses of
lead” that could be “obscure.” A 1938 British medical
article stated that “the harmful effects of continued
small doses of lead begin from the moment the lead is
absorbed” and can lead to a long series of “subtle”
harms. It opined that “there is no threshold below
which still smaller doses can be regarded as being
without some adverse effect.” A 1943 American
medical journal article discussed the impact of early
childhood subacute lead poisoning on a child’s
intelligence and subsequent academic achievement; it
called for a ban on interior residential use of lead
paint.
Knowledge about the toxic properties of lead paint
was not limited to the medical profession. In May
1910, the United States House of Representatives’
Committee on Interstate and Foreign Commerce held
a hearing on a bill aimed at preventing lead poisoning.
The bill would have required products containing
white lead to “be labeled conspicuously and securely
with a skull and crossbones and the words: ‘White
lead: poison.’” The sponsor of the bill noted that France
had already “entirely prohibited the use of white lead
because of its injurious character” and that “all
countries of Europe” had already enacted legislation
like his proposal. He spoke of “the injurious effect of
these atoms of white lead that are filling the air now;
they come loose from doors, from window sills, from
everywhere, we inhale them and consequently disease
is caused which physicians do not understand and can
not say what it really is, but it is, in many cases,
simply a case of lead poisoning.” Another proponent of
the bill observed that “the most eminent scientists and
doctors of Great Britain” had “found that the small
App-10
particles that result from chalking, especially from
internal painting and external painting as well, when
taken by inhalation into the lungs, are absorbed and
become a poison to the system.” This congressional
hearing was attended by an attorney for “practically
all of the paint manufacturers of this country” who
stated their opposition to the proposal. The bill failed.
A few years later, in 1914, Henry Gardner, who
was the assistant director of the Institute of Industrial
Research and also the director of the Paint
Manufacturers Association’s Educational Bureau,
published a speech that he had given to the
International Association of Master House Painters
and Decorators of the United States and Canada at
that association’s annual convention in February
1914. In this speech, Gardner acknowledged that “the
presence of [white lead] dust in the atmosphere of a
room is very dangerous to the health of the inmates”
and that “[l]ead poisoning may occur through
inhalation of [lead] dust . . . .”
Despite this evidence of the toxic properties of
white lead, the main use for white lead in the 20th
century was as a pigment for paint.14 NL, SWC, and
ConAgra’s predecessor, Fuller, were among the
handful of companies that manufactured white lead
carbonate pigments during the 20th century, and all
three of them used white lead carbonate pigment to
make paint. NL, SWC, and Fuller were all leaders in
the lead paint industry, and they knew at that time
14 Plaintiff’s experts defined “lead-based paint” as either paint
containing lead pigment or paint that was “either considered 100
percent or 70 percent pure white lead . . . or alternatively mixed
paint with . . . ’high-lead content.’”
App-11
that lead dust was poisonous. They were also aware
that lead paint “powders and chalks” “soon after it is
applied” and routinely produces lead dust after a
couple of years.
In 1922, NL, SWC, and Fuller were making white
lead carbonate pigment, using it in their paints, and
promoting white lead pigment in paint for use on and
in residential homes. Sales of white lead peaked in
1922. There was a decrease in the use of lead paint in
the 1920s and early 1930s. By 1944, during World War
II, the use of lead paint for residential interiors had
declined to a low level.
NL manufactured white lead carbonate pigment
from 1891 to 1978, and it had manufacturing facilities
in San Francisco and Los Angeles that manufactured
white lead carbonate pigments in California between
1900 and 1972. It sold those pigments to California
paint manufacturers, used them in its own paint
products sold in California, and advertised and
promoted paint products containing those pigments
for residential use within the 10 jurisdictions during
that same period. NL “kept up with the medical
literature” about lead poisoning. NL’s 1912 annual
report acknowledged that lead dust was a “danger to
the health” of workers exposed to it in the making of
white lead. By the mid to late 1920s, NL knew that
children who chewed on things painted with lead paint
could get lead poisoning and die from it. Nevertheless,
NL’s lead paints were marketed for residential use
and sold in and advertised in the 10 jurisdictions
between 1900 and 1972. NL produced a handbook for
consumers in 1950 that instructed them to use lead
paint on the interiors of their homes.
App-12
ConAgra’s predecessor, Fuller, manufactured
white lead carbonate pigment from 1894 until at least
1958. Fuller manufactured white lead carbonate
pigment at its San Francisco factory until 1898, when
it moved its factory to South San Francisco. At this
factory, Fuller refined white lead carbonate and was a
“major producer” of lead paint. Fuller also had a plant
in Los Angeles. Fuller’s lead paints were sold at its
own stores and by independent dealers in all 10
jurisdictions between 1894 and 1961.15 Fuller knew
that lead dust was poisonous. In 1919, an article about
Fuller’s South San Francisco plant noted that lead
dust is poisonous.
SWC began manufacturing paints containing
white lead carbonate pigments in 1880. SWC’s
internal publication, The Chameleon, published an
article in 1900 that acknowledged the many dangers
of lead paint. It stated: “A familiar characteristic of
white lead is its tendency to crumble from the surface,
popularly known as chalking”; “It is also familiarly
known that white lead is a deadly cumulative poison”;
and “This noxious quality becomes serious in a paint
that disintegrates and is blown about by the wind.” In
1910, SWC bought a lead mine, which it utilized to
manufacture white lead carbonate pigment from 1910
to 1947 for use in its own paints. SWC stopped
manufacturing white lead carbonate in 1947, but it
continued to make lead paint until 1958.16 SWC had
plants in Emeryville and later in Los Angeles that
manufactured paint containing white lead carbonate.
15 Fuller also produced and sold non-lead paints.
16 Some of SWC’s paints did not contain white lead pigment.
App-13
SWC continued to sell lead paint until 1972. SWC
removed all lead from its residential paints by the end
of 1972.
Two trade associations, the Lead Industries
Association (LIA) and the National Paint, Varnish,
and Lacquer Association (NPVLA) promoted the use
of lead paint. Fuller, NL, and SWC were members of
both the LIA and the NPVLA. The LIA, which was
created in 1928, promoted the use of white lead
pigments in residential paint by sponsoring two
advertising campaigns, the Forest Products Better
Paint campaign and the White Lead Promotion
campaign, in the first half of the 20th century. The
LIA knew that white lead was being attacked from “a
health standpoint,” and these campaigns were
designed to increase the consumption of lead.
The LIA provided its members with information
about lead hazards and lead poisoning that was
available in medical and scientific literature at the
time. NL was present at a 1930 LIA board of directors
meeting at which a 1930 article about lead poisoning
of babies and children from chewing lead paint off of
cribs was discussed. The article, which ran in the U.S.
Daily, a publication “Presenting the Official News” of
the government, stated that lead poisoning from
“chewing paint from toys, cradles, and woodwork” was
“a more frequent occurrence” than previously thought
and noted that even a small amount of lead could kill
a child. The article also noted that “[c]hildren are very
susceptible to lead” and that the “most common
sources of lead poisoning in children are paint on
various objects within reach of a child and lead
pipes . . . .”
App-14
In 1934, the LIA launched its Forest Products
campaign, which promoted lead paint for interior
residential use. At a 1935 LIA annual meeting, it was
acknowledged that childhood lead poisoning
disproportionately affected poor and minority children
and that there were thousands of cases annually. Yet
the LIA fought against the imposition of regulations
on lead. A 1937 LIA conference on lead poisoning was
attended by representatives from NL and SWC, and
Fuller received a transcript of the conference. Both
industrial lead poisoning and childhood lead poisoning
were discussed at the 1937 conference. There was
discussion of research that showed it was nearly
impossible to get rid of lead once it got into a child’s
body. Attendees at the conference were asked by the
head of the LIA not to discuss what they learned at the
conference in order to avoid unfavorable publicity
connecting lead paint to lead poisoning. The LIA’s
Forest Products campaign continued through 1941.
The NPVLA, unlike the LIA, represented paint
manufacturers regardless of whether they used lead
pigments.17 The NPVLA ran advertising campaigns
promoting paint throughout the first half of the 20th
century. One was called Save the Surface in 1920 and
1921. The other was called Clean Up Paint Up and
was ongoing in 1949. All three companies were
involved in both advertising campaigns. Neither of the
NPVLA’s campaigns distinguished between lead paint
and non-lead paint, but these campaigns included
17 Fuller was a member of the NPVLA from 1933 to 1962. NL
was an NPVLA member from 1933 to 1977. SWC was a member
of the NPVLA from 1933 to 1981.
App-15
advertisements promoting all three companies’ lead
paint products.
Lead paint was banned in the United States in
1978. (County of Santa Clara v. Atlantic Richfield Co.
(2006) 137 Cal.App.4th 292, 302 (Santa Clara I).) In
1991, the Centers for Disease Control (the CDC) set
the “level of concern” for lead at a blood lead level
(BLL) of 10 mcg/dL.18 In 2012, the CDC replaced this
standard with a “reference value” of 5 mcg/dL, which
represents the top 2.5 percent of BLLs in children
under the age of five. “[T]he reference value simply
denotes the worst or the highest exposed children in a
population.” At that point, national data reflected that
5.3 percent of children living in pre-1950 housing had
BLLs exceeding that value, while only 0.4 percent of
children living in post-1978 housing had BLLs
exceeding that value.
In 1995, the California Legislature enacted the
Childhood Lead Poisoning Prevention Act of 1991.
(Health & Saf. Code, §§ 105275, 124125; Stats. 1995,
ch. 415, § 8.) This act created the Childhood Lead
Poisoning Prevention Program (CLPPP). (Health &
Saf. Code, § 124125.) The Childhood Lead Poisoning
Prevention Branch (CLPPB), a division of California’s
Department of Public Health, was accorded the role of
coordinating the state’s approach to childhood lead
exposure and childhood lead poisoning. The CLPPB
devotes its resources to outreach, education, case
management programs to track those who have been
lead poisoned or exposed to lead, and programs to
18 The impact of blood lead levels below 10 mcg/dL was not well
understood until 2005.
App-16
address lead hazards. The CLPPB also contracts with
and supervises 43 county CLPPPs.
The CLPPB focuses on children who are one or
two years old. Health care providers are required to
order that a child be screened for lead poisoning at age
one and at age two if “the child receives services from
a publicly funded program for low-income children.”
(Cal. Code Regs., tit. 17, § 37100.) Medical
laboratories are required to report all BLLs to the
CLPPB. (Health & Saf. Code, § 124130; Stats. 2002,
ch. 931, § 11.) The CLPPB considers it a “case” of lead
poisoning if a child’s BLL exceeds 19.5 mcg/dL or
persistently exceeds 14.5 mcg/dL. In such cases, a
public health nurse and an environmental health
specialist visit the child’s home to try to determine
potential sources of the lead poisoning.
National
average
BLLs
have
declined
precipitously since the 1970s, falling by about 90
percent. In 1980, it was estimated that 88.3 percent of
children had BLLs in excess of 10 mcg/dL. By 2008, it
was estimated that less than one percent of children
had BLLs over 10 mcg/dL.19 Nevertheless, in 2010,
around 22,000 children under the age of six in
California had BLLs over 4.5 mcg/dL. And at the time
of trial in 2013, California had more than 2,000
children with BLLs over 10 mcg/dL and more than
15,000 additional children with BLLs over 5 mcg/dL.
19 The prevalence of elevated BLLs in children under the age of
six in California appeared to have declined 60 percent from 2003
to 2010.
App-17
Children in California with BLLs over 9.5 mcg/dL
represented 0.35 percent of California’s children.20
Children in the 10 jurisdictions are continuing to
be exposed to lead from the lead paint in their homes
and to suffer deleterious effects from that lead.
Although only a small percentage of the children in
these jurisdictions are screened for lead, thousands of
children are found to have BLLs of concern each year.
Lead poisoning from lead paint is “the number one
environmental children’s health issue in Alameda
County.” The primary cause of lead poisoning in
Alameda County is lead paint. About 75 percent of
Alameda County’s homes are pre-1980, which
amounts to 430,000 units. Nearly 174,000 of those
units are pre-1950. Alameda County is able to screen
only 46 percent of the children under the age of six
who are poor and live in pre-1978 homes. Alameda
County’s CLPPP opens a case only when there is a
lead-poisoned child with a BLL of 20 mcg/dL or two
BLLs of 15 mcg/dL. In 2012, 14 children met that
standard in Alameda County. That triggers an
investigation of the home and education of the parents
about sources of exposure. There is no funding for
remediation. Alameda County’s CLPPP also tries to do
outreach and education to families with children who
have BLLs of 5 mcg/dL or higher,21 but there is no
20 Because the laboratories doing the tests lack the ability to
report precise results, BLLs of 4.5 are rounded up to 5 and BLLs
of 9.5 are rounded up to 10.
21 The limits of detection do not permit such precise
measurement, so the CLPPP actually provides these services
when the BLL is over 4.5 mcg/dL.
App-18
funding for dealing with these children. In 2010, there
were 14 children in that category.
Lead poisoning is the top pediatric environmental
health problem in Los Angeles County. The most
common source of lead poisoning in Los Angeles
County is lead paint chips and lead paint dust. Lead
paint is a “severe environmental health concern” in
Los Angeles County. In Los Angeles County,
77 percent of the housing was built before 1978, which
is more than 2.6 million housing units. More than
900,000 of those housing units are pre-1950. Los
Angeles County’s investigators have often found lead
paint dust in homes with intact lead paint. In 2010,
Los Angeles County had about 6,500 children under
the age of six with BLLs of greater than 4.5 mcg/dl.
Los Angeles County’s CLPPP generally does not do
“primary prevention” but only screening and
“secondary prevention.” Los Angeles County’s CLPPP
handles about 75 to 100 cases of lead poisoning each
year. In at least 75 percent of those cases, lead paint
is a potential source of the lead poisoning. At least 70
percent of those cases involve pre-1978 housing.
Lead paint is a serious environmental health
concern in Monterey County. In Monterey County, 66
percent of the housing was built before 1980, which
accounts for between 89,000 and 90,000 units.
Between 18,000 and 19,000 of those units were built
before 1950. Each year, Monterey County’s CLPPP
receives between 13 and 15 new cases where there has
been a report of a BLL of 20 mcg/dL or two BLLs of
14.5 mcg/dL or greater. The children are generally
between the ages of one and three. For those cases, it
conducts a full assessment of the home. Each month
App-19
Monterey County receives 10 to 20 reports of a child
with a BLL of 4.5 mcg/dL or higher. A substantial
number of cases of lead poisoning in Monterey County
have been attributed to imported foods.
Lead-based paint hazards in Oakland homes are
“coming close to crisis mode.” In Oakland, 80 to 90
percent of the housing is pre-1978, which accounts for
about 174,000 units. Each year, Oakland’s Lead Safe
Housing Program receives 16 to 20 referrals from
Alameda County’s CLPPP to assess homes where
lead-poisoned children live.
In the City of San Diego, 60.5 percent of the
housing was built before 1980. There are about
300,000 pre-1978 housing units of which more than
62,000 are pre-1950. The City of San Diego has a Lead
Safety Healthy Homes Program that offers education,
outreach, risk assessments, and lead inspections.
More than half of the 2,700 lead inspections completed
in the City of San Diego between 2005 and 2013
identified lead hazards.
In San Francisco, 94 percent of the homes were
built before 1978, which is more than 317,000 housing
units, and 68 percent were built before 1950, which is
more than 235,000 housing units. About 22,000
housing units in San Francisco that are occupied by
low and moderate income families are believed to have
lead-based paint hazards. San Francisco’s CLPPP
contacts parents when a child tests at 2 mcg/dL or
higher. Only very infrequently is the source of the
child’s lead exposure anything other than lead paint.
In 2010, when San Francisco tested 10,300 children
under the age of six, 959 children tested between 4.5
and 9.5 mcg/dL, and 35 tested higher. Since 2010, San
App-20
Francisco has been “seeing increasing numbers” of
lead exposed children. Each year, San Francisco
issues about 200 notices to correct lead paint and soil
lead hazards.
The number one source of lead poisoning in San
Mateo County is lead paint. Lead paint in pre-1978
housing is a public health problem in San Mateo
County. This includes intact lead paint because it will
inevitably deteriorate. In San Mateo County, 80 to 90
percent of the housing is pre-1978, which is more than
200,000 housing units. More than 56,000 of those
units are pre-1950.
“[L]ead paint is the number one environmental
cause of poisoning of children in Santa Clara County”
and is a threat to public health there. In Santa Clara
County, two-thirds of the housing stock is pre-1978,
which is more than 426,000 housing units. More than
61,000 of those are pre-1950. Although in 2010 Santa
Clara County could only afford to test less than 20
percent of the more than 150,000 children under the
age of six who lived in the county, 339 of them had
BLLs between 4.5 mcg/dL and 9.5 mcg/dL, and 71 had
BLLs over 9.5 mcg/dL. Most of the children with
elevated BLLs lived in pre-1978 housing. “[O]nce
those children are determined to be lead poisoned, it
is too late.”
Lead poisoning of children is a “very significant
problem” in Solano County, and it “causes substantial
harm even at the lowest levels of exposure” such as 5
mcg/dL. “The harm is very substantial, the harm is
permanent. Children’s IQs are affected . . . they have
impairment of memory, difficulty with problem
solving, inattentiveness . . . .” Only about 20 percent of
App-21
the 32,000 children under age six in Solano County are
tested for lead. This is due to lack of access to medical
care for poor children. In 2010, at least 100 children in
Solano County had BLLs over 4.5 mcg/dL. Between
2001 and 2012, the sole source of lead exposure was
lead paint for 55 percent of the children in Solano
County with a BLL of 20 mcg/dL or higher or two BLLs
of 15 mcg/dL. In many of the other cases, lead paint
was a contributing source. Between 75,000 and 80,000
homes in Solano County were built before 1978, which
is about 51 percent of all of the homes. More than
18,000 of those units are pre-1950. Solano County has
no resources for code enforcement of lead paint
hazards in homes or for remediation.
Ventura County has almost 174,000 pre-1978
housing units. Almost 20,000 of those are pre-1950. In
2010, Ventura County had 34 children with BLLs
higher than 10 mcg/dL and 271 children with BLLs
over 5 mcg/dL. Ventura County’s CLPPP does not do
any environmental investigation as to children with
BLLs between 5 and 15 mcg/dL. For those children,
Ventura’s CLPPP provides only educational material.
The CLPPPs lack the ability to engage in primary
prevention, which seeks to prevent lead exposure in
the first place. Instead, the CLPPPs largely target
children who have already been exposed to lead.
Abatement would be primary prevention. Although it
is not feasible to remove all lead from every home in
the 10 jurisdictions, primary prevention could be
substantially furthered by lead inspections, risk
assessments, education, and remediation of identified
lead hazards in homes in the 10 jurisdictions.
App-22
II. Defense Evidence At Trial
BLLs in children under the age of six nationally
have been dropping since the 1970s, going from a
geometric mean of 15 mcg/dL in the late 1970s to
1 mcg/dL in 2009/2010. The percentage of children
under the age of six with BLLs exceeding 10 mcg/dL
has dropped over that period from more than
80 percent to less than one-half of one percent. A
similar drop has occurred for children under the age of
six with BLLs over 5 mcg/dL. The same is true in the
western region, which includes California, where the
geometric mean for BLLs is about 25 to 30 percent
lower than in other regions. In most of the
10 jurisdictions, BLLs and the percentage of elevated
BLLs also dropped from 2007 to 2012.
A defense expert testified that the lower BLLs
reflected decreasing exposure of children to lead. It
was his opinion that leaded gasoline was largely
responsible for both soil lead and dust lead and that
there was “very little impact of exposure to lead from
paint on community-wide blood lead levels.”
Another defense expert testified that the current
understanding of childhood lead poisoning was
unknown before 1970. In his view, the amount of lead
considered toxic and awareness of “the pathway by
which lead gets into the child’s body” had both
“changed radically over the years.” He asserted that in
the first decade of the 20th century lead poisoning was
considered an “industrial disease of adults.” No tests
were available to measure a BLL. It was not until the
1930s that a BLL test became available. This defense
expert testified that, prior to 1920, there were no cases
in the United States of a child ingesting lead paint
App-23
from a household surface. By 1940, interior use of lead
paint was dwindling. In 1951, Baltimore banned lead
paint for interior use. In 1953, there was a general call
for lead paint not to be used for interiors.
This defense expert testified that in 1971, the
medical community’s understanding was that lead
poisoning did not cause significant symptoms until the
BLL exceeded 60 mcg/dL. In 1970, the United States
Surgeon General determined that a BLL of 40 mcg/dL
should be considered “evidence suggestive of undue
absorption of lead . . . .” It was not recognized until
1974 that children could consume lead originating
from lead paint from household dust, rather than only
from flakes and chips. In 1985, the CDC set an
“intervention level” for BLLs at 25 mcg/dL. In 1991,
the CDC set the “level of concern” for BLLs at 10
mcg/dL.
A defense epidemiologist testified that it was not
clear even in 2003 whether BLLs below 10 mcg/dL
produced cognitive deficits. This expert testified that
a subsequent study authored by one of plaintiff’s
experts showing such deficits was flawed. This expert
had not studied childhood lead exposure, but he
testified that the evidence was inconclusive whether
there were cognitive effects of BLLs below 10 mcg/dL.
SWC presented a statistician who testified that
SWC had contributed only 6,732 tons of lead to
California over the period from 1894 to 2009 out of a
total of 217,784 tons of lead consumed in California
during that period, which was just “.1 percent” of the
total lead. On cross-examination, he conceded that his
estimate was limited to lead manufactured by SWC
between 1910 and 1947, which was the only period
App-24
when SWC manufactured lead. SWC continued to
make lead paint after 1947. His estimate was also
based primarily on national data about lead
consumption to which he had applied a ratio based
solely on population to determine what he thought
was California’s consumption.
Another defense expert testified that lead paint
does not inevitably deteriorate. He asserted that if
lead paint is “maintained properly and re-coated as
needed on a regular maintenance cycle,” it will not
deteriorate. His premise was that repainting would be
needed every three to five years. On crossexamination, he admitted that lead paint would
deteriorate over time, particularly on friction surfaces
like windows. He also admitted that repainting would
require surface preparation, which would often mean
sanding or scraping, in order to provide a surface to
which the new paint would adhere.
The defense’s abatement expert testified that the
replacement of windows and doors that have been
painted with lead paint is “a very intrusive and
disruptive process” that involves “guys in moon suits,
[and] respirators.” That process can disturb other
hazardous waste, such as asbestos, and lead to the
discovery of mold issues. The remediation of floors and
soil would also be invasive, labor intensive, and time
consuming. He also suggested that the abatement
plan’s cost estimates for remediation were
unrealistically low. He believed that remediation
would often take a week or more and could increase
the risk of lead exposure for the residents of the home.
He also testified that replacing windows does not
App-25
lower BLLs and that remediation can result in higher
BLLs.
III. Procedural Background
In March 2011, plaintiff filed a fourth amended
complaint (FAC) for public nuisance.22 It named as
defendants ConAgra, NL, SWC, Atlantic Richfield
Company (ARCO), E.I. Du Pont de Nemours and
Company (DuPont), and 50 Doe defendants.23 The
FAC alleged that the presence of lead in homes was a
public nuisance and that defendants were “liable in
public nuisance” because they had created or assisted
in the creation of this public nuisance.24 Plaintiff
sought abatement, injunctive relief, costs, and
attorney’s fees. The parties stipulated that the FAC
concerned only residential buildings and no public
buildings.
The court struck defendants’ jury demands, and
the case was tried to the court in July and August
2013. In March 2014, the court issued an amended
statement of decision and an amended judgment. The
court’s amended statement of decision, which was over
We need not discuss at length the long and complicated
procedural history of this case, which was originally filed in 2000.
This case has already produced one published decision by this
court (Santa Clara I, supra, 137 Cal.App.4th 292) and another by
the California Supreme Court (County of Santa Clara v. Superior
Court (2010) 50 Cal.4th 35 (Santa Clara II)). We will discuss
these decisions only where they are relevant to the issues before
us in this appeal.
22
23 The trial court found that ARCO and DuPont were not liable,
and they are not parties to this appeal.
24 Defendants’ demurrer to the FAC was overruled. The court
also denied summary judgment motions by NL and SWC.
App-26
100 pages long, made numerous findings. The court
expressly found that, “[s]ince antiquity, it has been
well known that lead is highly toxic and causes severe
health consequences when ingested” and that “[e]ven
relatively low levels of lead exposure have severe
health consequences.” It found that lead paint is
prevalent in the 10 jurisdictions, “inevitably
deteriorates,” and is the primary source of lead
exposure for young children living in pre-1978 housing
in the 10 jurisdictions. As a result, children in these
jurisdictions are continuing to be exposed to lead from
lead paint even though residential lead paint was
banned in 1978. The court expressly found that
ConAgra, NL, and SWC each had “actual knowledge
of the hazards of lead paint,” “including childhood lead
poisoning,” when they promoted lead paint for interior
residential use. The court’s judgment required
defendants to pay $1.15 billion into an abatement fund
that would pay for lead inspections, education about
lead hazards, and remediation of particular lead
hazards inside residences in the 10 jurisdictions.
Defendants timely filed notices of appeal.25
IV. Discussion
A. Substantial Evidence Issues
A public nuisance cause of action is established by
proof that a defendant knowingly created or assisted
in the creation of a substantial and unreasonable
interference with a public right. (Santa Clara I, supra,
137 Cal.App.4th at pp. 305-306.)
Defendants contend that plaintiff failed to
produce substantial evidence in support of its public
25 Plaintiff also appealed, but it later dismissed its appeal.
App-27
nuisance cause of action. They assert that substantial
evidence does not support the trial court’s findings
that (1) they had actual knowledge of the public health
hazard posed by interior use of lead paint at the time
they promoted and distributed it; (2) they promoted
lead paint for interior use; (3) their conduct caused the
public nuisance to occur; and (4) the nuisance is
abatable, lead paint poses an imminent danger, and
abatement will lower BLLs.
1.
Standard of Review
Defendants contend that their claims that
substantial evidence does not support the trial court’s
judgment raise questions of law that we must review
de novo. They cite Smith v. Selma Community Hosp.
(2008) 164 Cal.App.4th 1478 (Smith) as support for
this contention. Smith is inapposite. In Smith, the
Court of Appeal was reviewing a governing board’s
decision reviewing a judicial review committee’s
decision. The board, which was exercising substantial
evidence review, concluded that the committee’s
decision was not supported by substantial evidence.
Since the Court of Appeal was reviewing the board’s
decision that substantial evidence did not support the
committee’s decision, the Court of Appeal necessarily
exercised independent review. (Smith, at pp. 15151516.) As we are not reviewing another reviewing
body’s decision as to whether a third body’s decision
was supported by substantial evidence, we do not
exercise independent review. Instead, we exercise
ordinary deferential substantial evidence review.
“‘When a finding of fact is attacked on the ground
that there is not any substantial evidence to sustain
it, the power of an appellate court begins and ends
App-28
with the determination as to whether there is any
substantial evidence contradicted or uncontradicted
which will support the finding of fact.’” (Foreman &
Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) “‘[W]e
have no power to judge of the effect or value of the
evidence, to weigh the evidence, to consider the
credibility of the witnesses, or to resolve conflicts in
the evidence or in the reasonable inferences that may
be drawn therefrom.’” (Leff v. Gunter (1983) 33 Cal.3d
508, 518.) Our role is limited to determining whether
the evidence before the trier of fact supports its
findings. (Reddy v. Gonzalez (1992) 8 Cal.App.4th 118,
123.)
Defendants claim that we may not presume
implied findings in plaintiff’s favor because there were
“key ambiguities” in the trial court’s statement of
decision that they brought to the court’s attention but
the court did not resolve.
“When a statement of decision does not resolve a
controverted issue, or if the statement is ambiguous
and the record shows that the omission or ambiguity
was brought to the attention of the trial court . . . , it
shall not be inferred on appeal . . . that the trial court
decided in favor of the prevailing party as to those
facts or on that issue.” (Code Civ. Proc., § 634.) “To
bring defects in a statement of decision to the trial
court’s attention within the meaning of section 634,
objections to a statement of decision must be ‘specific.’
[Citation.] The alleged omission or ambiguity must be
identified with sufficient particularity to allow the
trial court to correct the defect. [Citation.] ‘By filing
specific objections to the court’s statement of decision
a party pinpoints alleged deficiencies in the statement
App-29
and allows the court to focus on the facts or issues the
party contends were not resolved or whose resolution
is ambiguous.’” (Ermoian v. Desert Hospital (2007) 152
Cal.App.4th 475, 498.) “[A] trial court is not required
to respond point by point to issues posed in a request
for a statement of decision. ‘“The court’s statement of
decision is sufficient if it fairly discloses the court’s
determination as to the ultimate facts and material
issues in the case.” [Citations.]’” (Id. at p. 500.)
After trial, each defendant submitted a proposed
statement of decision, and plaintiff submitted
proposed findings of fact and law and a proposed
order. In December 2013, the court issued a proposed
statement of decision. Plaintiff and defendants filed
objections to the proposed statement of decision. The
court subsequently filed an amended statement of
decision and an amended judgment.26
Defendants’ appellate briefs identify six “key
ambiguities” that they assert they brought to the
court’s attention but the court failed to address in its
statement of decision. The alleged “ambiguities” they
identify are: (1) “Whether the court found any part of
defendants’ recitation of the historical knowledge of
lead hazards to be incorrect;” (2) “What level of lead
exposure the court referred to as being ‘lead
26 In January 2014, the court issued a statement of decision.
Plaintiff submitted a proposed judgment, and defendants
objected to the proposed judgment. The court entered judgment
followed by an amended judgment. Defendants moved to vacate
the judgment and for a new trial. The court denied the motions
for new trial and to vacate the judgment. Plaintiff moved to
modify the statement of decision and the judgment, and the court
filed an amended statement of decision and a second amended
judgment.
App-30
poisoning’”; (3) “What facts about lead’s hazards the
court found that defendants ‘actually knew’”;
(4) “Which of defendants’ promotions for interior paint
the court found to be a basis for liability”; (5) “On what
basis the court included housing built after 1950”; and
(6) “what public rights.”
“[I]t is settled that the trial court need not, in a
statement to decision, ‘address all the legal and
factual issues raised by the parties.’ [Citation.] It ‘is
required only to set out ultimate findings rather than
evidentiary ones.’ [Citation.] ‘“[U]ltimate fact[]’” is a
slippery term, but in general it refers to a core fact,
such as an element of a claim or defense, without
which the claim or defense must fail. [Citation.] It is
distinguished conceptually from ‘evidentiary facts’
and ‘conclusions of law.’” (Yield Dynamics, Inc. v. TEA
Systems Corp. (2007) 154 Cal.App.4th 547, 559.)
Only one of defendants’ six alleged “ambiguities”
arguably pertains to a “core fact” rather than an
evidentiary fact. SWC’s objections to the court’s
proposed statement of decision asked the court to
“define ‘harmful’” with respect to defendants’
knowledge of lead’s harmful nature. SWC argued that
this was important because the state of knowledge at
the time defendants promoted lead paint did not
include knowledge of the risks of low-level exposure to
deteriorating lead paint. ConAgra adopted SWC’s
objections and also asked the court to “specify what
hazard it finds that Fuller knew when it promoted
lead paint for residential interior use, and when Fuller
knew exposure to lead at even minute levels was
harmful.” ConAgra requested that the court specify
“what ‘harm’ each defendant ‘knew.’” NL objected to
App-31
the court’s proposed knowledge findings and asked
that the court “specifically identify the knowledge that
NL had at that time.” We address the court’s
treatment of the “harms” and “hazards” issue in the
course of our analysis of defendants’ challenge to the
court’s knowledge findings. In all other respects, we
reject defendants’ claim that the court failed to resolve
an ambiguity as to a “core fact” because we conclude
that the alleged ambiguities concerned evidentiary
facts.
Before we embark on our substantial evidence
review, we note that we cannot rely solely on the
expert testimony produced by plaintiff. Plaintiff’s
expert witnesses testified to conclusions that would
appear on their face to establish both the actual
knowledge and promotion elements of plaintiff’s case.
One of plaintiff’s experts testified: “These Defendants
manufactured white lead carbonate; these Defendants
knew of the hazards of lead during the time that they
were manufacturing white lead carbonate; these
Defendants advertised, promoted, and sold their lead
and/or lead [based] products while they had
knowledge of the hazards of lead; these Defendants
advertised, promoted, and sold their lead and/or lead
containing products for use in and around homes
within each of the 10 jurisdictions; suitable
substitutes were available for white lead; these
Defendants, through their trade association,
downplayed the hazards of lead; and these
Defendants, through their trade associations, fought
the imposition of regulations.” And plaintiff’s experts
testified to even more specific conclusions: “SherwinWilliams had actual knowledge about the hazards of
lead as early as 1900.”
App-32
If we could accept plaintiff’s expert witnesses’
testimony at face value, this testimony would itself
support the trial court’s findings. However, we may
not do so. “‘The chief value of an expert’s testimony in
this field, as in all other fields, rests upon the material
from which his opinion is fashioned and the reasoning
by which he progresses from his material to his
conclusion; . . . it does not lie in his mere expression of
conclusion.’”27 (People v. Bassett (1968) 69 Cal.2d 122,
141.) “Where an expert bases his conclusion upon
assumptions which are not supported by the record,
upon matters which are not reasonably relied upon
[by] other experts, or upon factors which are
speculative, remote or conjectural, then his conclusion
has no evidentiary value. [Citations.] In those
circumstances the expert’s opinion cannot rise to the
dignity of substantial evidence. [Citation.] When a
trial court has accepted an expert’s ultimate
conclusion without critical consideration of his
reasoning and it appears the conclusion was based
upon improper or unwarranted matters, then the
judgment must be reversed for lack of substantial
evidence.” (Pacific Gas & Electric Co. v. Zuckerman
(1987) 189 Cal.App.3d 1113, 1135-1136.) “If [the
expert’s] opinion is not based upon facts otherwise
The material upon which the expert relies may provide
substantial evidence to support the expert’s conclusion. However,
there are limitations on an expert’s testimony about that
material. “What an expert cannot do is relate as true case-specific
facts asserted in hearsay statements, unless they are
independently proven by competent evidence or are covered by a
hearsay exception.” (People v. Sanchez (2016) 63 Cal.4th 665,
686.) We will consider defendants’ hearsay challenges in section
IV(J)(1) of this opinion.
27
App-33
proved, or assumes facts contrary to the only proof, it
cannot rise to the dignity of substantial evidence.”
(Estate of Powers (1947) 81 Cal.App.2d 480, 485-486.)
Consequently, a conclusion expressed by an
expert cannot provide by itself substantial evidence to
support a finding unless the basis for the expert’s
conclusion is itself supported by substantial evidence.
Our substantial evidence review must include a
critical examination of the material upon which the
experts based their conclusions in order to determine
whether that material provides substantial support
for those conclusions.
2.
Actual Knowledge
Defendants claim that the trial court did not find
actual knowledge, but only constructive knowledge,
and that its knowledge findings are not supported by
substantial evidence.
Constructive knowledge would not be sufficient to
support plaintiff’s public nuisance cause of action. The
standard set by this court in Santa Clara I is actual
knowledge, not constructive knowledge. “[L]iability is
premised on defendants’ promotion of lead paint for
interior use with knowledge of the hazard that such
use would create. This conduct is distinct from and far
more egregious than simply producing a defective
product or failing to warn of a defective
product . . . . [¶] A public nuisance cause of action is
not premised on a defect in a product or a failure to
warn but on affirmative conduct that assisted in the
creation of a hazardous condition. Here, the alleged
basis for defendants’ liability for the public nuisance
created by lead paint is their affirmative promotion of
lead paint for interior use, not their mere manufacture
App-34
and distribution of lead paint or their failure to warn
of its hazards.” (Santa Clara I, supra, 137 Cal.App.4th
292, 309-310, boldface & italics added.) By tethering
the public nuisance cause of action to affirmative
promotion for a use defendants knew to be hazardous,
this court necessarily set forth an actual knowledge
standard. If the standard had been only constructive
knowledge, the affirmative promotion of a product for
a particular use that was hazardous would not have
been “far more egregious” than simply failing to warn
of a defective product.
We reject defendants’ claim that the trial court
did not find “actual knowledge.” The trial court’s
statement of decision expressly found that all three
defendants had “actual knowledge of the hazards of
lead paint—including childhood lead poisoning” when
they produced, marketed, sold, and promoted lead
paint for residential use. It found: “ConAgra had
actual knowledge of the hazards of lead paint—
including childhood lead poisoning—for the duration
of its production, marketing, and sale of lead pigments
and paint for home use”; “NL had actual knowledge of
the hazards of lead paint, including childhood lead
poisoning”; “SW[C] had actual knowledge of the
hazards of lead paint—including childhood lead
poisoning—for the duration of its production,
marketing, and sale of lead pigments and lead paint
for home use.”
While the standard we established in Santa
Clara I is actual knowledge, our substantial evidence
review remains deferential, and we must accept any
reasonable inferences that the trial court drew from
the evidence before it. The fact that the trial court was
App-35
required to find actual knowledge does not mean that
the court could not rely exclusively on circumstantial
evidence to support such a finding. The only limit on
the trial court’s reliance on inferences from
circumstantial evidence to establish actual knowledge
is that those inferences may not be speculative or
conjectural. “‘“Actual knowledge can be inferred from
the circumstances only if, in the light of the evidence,
such inference is not based on speculation or
conjecture. Only where the circumstances are such
that the defendant ‘must have known’ and not ‘should
have known’ will an inference of actual knowledge be
permitted.” [Citation.]’” (Romero v. Superior Court
(2001) 89 Cal.App.4th 1068, 1082.) This distinction
between what a defendant must have known and what
a defendant should have known is crucial. Proof of
actual knowledge focuses on what information a
defendant must have been aware of, while proof of
constructive knowledge rests on a defendant’s duty to
discover information.
We reject defendants’ claim that the court left
undefined the nature of the “hazard” or “harm” that
defendants had knowledge of when they promoted
lead paint for interior residential use. The court
expressly found that defendants “learned about the
harms of lead exposure through association-sponsored
conferences.” It expressly found that defendants knew
in the 1930s that “the dangers of lead paint to children
were not limited to their toys, equipment, and
furniture.” The court expressly found that defendants
knew both that “high level exposure to lead—and, in
particular, lead paint—was fatal” and that “lower
level lead exposure harmed children.” The court also
found that, by the 1920s, defendants knew that “lead
App-36
paint used on the interiors of homes would deteriorate,
and that lead dust resulting from this deterioration
would poison children and cause serious injury.”
The trial court’s express findings made clear that
the “harms” and “hazards” of which defendants had
actual knowledge included that (1) “lower level lead
exposure harmed children,” (2) “lead paint used on the
interiors of homes would deteriorate,” and (3) “lead
dust resulting from this deterioration would poison
children and cause serious injury.” Because the trial
court made the express findings that defendants
sought in their objections to the court’s proposed
statement of decision, we are not precluded from
drawing inferences in support of the trial court’s
decision. In any case, the court’s express findings fully
suffice to support its decision.
Here, the trial court properly focused on evidence
of information that defendants must have been aware
of under the circumstances. This evidence was
sufficient to support a reasonable inference that each
defendant must have known by the early 20th century
that interior residential lead paint posed a serious risk
of harm to children.
First, evidence before the trial court established
that, by 1914, it was well known in the paint
manufacturing industry that deteriorated lead paint
on residential interiors, particularly doors and
windowsills, released “small particles” of lead into the
air, which were “very dangerous” to and could be
ingested by humans and “poison” them.
In May 1910, the United States House of
Representatives’ Committee on Interstate and
Foreign Commerce held a hearing on a bill aimed at
App-37
preventing lead poisoning. The bill would have
required products containing white lead to “be labeled
conspicuously and securely with a skull and
crossbones and the words: ‘White lead: poison.’”
Congressman Richard Bartholdt, who was the sponsor
of the proposal, explained to the committee that “the
painters of the United States,” who had originally
opposed the proposal, had “practically all come around
now” to supporting regulation of white lead. Bartholdt
pointed out that France had already “entirely
prohibited the use of white lead because of its
injurious character” and that “all countries of Europe”
had already enacted legislation like his proposal.
Bartholdt explained: “We know very little of the
injurious effect of these atoms of white lead that are
filling the air now; they come loose from doors, from
window sills, from everywhere, we inhale them and
consequently disease is caused which physicians do
not understand and can not say what it really is, but
it is, in many cases, simply a case of lead poisoning.”
One of the proponents of the bill told the committee
that “the most eminent scientists and doctors of Great
Britain” had “found that the small particles that result
from chalking, especially from internal painting and
external painting as well, when taken by inhalation
into the lungs, are absorbed and become a poison to
the system.” He also stated that an “eminent scientist”
in London had said that occupying a room that had
been painted with white lead was “dangerous.”
Eugene Philbin attended the hearing as “counsel
for, I think, practically all of the paint manufacturers
of this country—the leading ones,” to state their
opposition to the proposal. Philbin said that he
App-38
represented not only the “Paint Manufacturers’
Association” but also the “National Paint, Oil, and
Varnish Association.” Philbin objected to the “poison
provision” on the ground that it was “entirely
unnecessary” and would “create a fear on the part of
the consumer.” The bill failed.
A few years later, in 1914, Gardner, the director
of the Paint Manufacturers Association’s Educational
Bureau, published a speech that he had given to the
International Association of Master House Painters
and Decorators of the United States and Canada at
that association’s annual convention in February
1914. In this speech, Gardner acknowledged that “the
presence of [white lead] dust in the atmosphere of a
room is very dangerous to the health of the inmates.”
He observed that “[l]ead poisoning may occur through
inhalation of [lead] dust . . . .” Gardner suggested that
“white lead flatted with turpentine” was to blame for
the disintegration of white lead paint into white lead
dust.28 However, Gardner expressed the belief that
“the use of flatted white lead has been largely
abandoned for wall and ceiling decoration, and its
place has been taken by the more sanitary leadless
Flat Wall Paints.”
Notwithstanding Gardner’s belief, interior
residential use of lead paint continued throughout the
first half of the 20th century despite widespread
28 In 1914, it had long been a common practice to mix lead paint
with turpentine. That practice did not end. Fuller’s 1931 White
Lead Paint brochure instructed users to mix the lead paint with
turpentine. NL’s 1950 Handbook on Painting recommended
mixing lead paint with turpentine when painting interior
woodwork.
App-39
knowledge in the paint industry of the toxic properties
of white lead. NL, SWC, and Fuller were all leaders in
the lead paint industry. SWC proclaimed itself in 1901
to be “the largest manufacturer of Prepared Paint in
the world.” In 1934, SWC called itself the “World’s
Largest Paint Producer” and identified itself as “one of
the country’s largest producers of White Lead.” NL
took pride in its position as a leader in the white lead
industry since 1891. In 1912, NL made more than 20
different brands of Dutch Boy White Lead for
painting, the brand that it had adopted in 1907. By the
late 19th century, Fuller was the leading seller of
white lead on the West Coast and was “one of the
strongest concerns dealing in paints, oils and glass in
the United States.”
NL, SWC, and Fuller, as leaders in the lead paint
industry were well aware in the early part of the 20th
century that lead dust was poisonous. They were also
aware that lead paint “powders and chalks” “soon
after it is applied” and routinely produces lead dust
after a couple of years. Both the May 1910
congressional hearing and the published 1914 Paint
Manufacturing Association speech plainly discussed
the dangers posed by interior residential use of lead
paint. Because defendants were leaders in the paint
industry at that time, they must have been aware of
hazards related to their products that were well
known in the paint industry. It is neither speculative
nor conjectural to draw a reasonable inference that
leaders in the paint industry were aware of a serious
hazard caused by their product when this hazard was
generally known in their industry. Indeed, it would be
unreasonable to infer that, notwithstanding general
knowledge of the hazard of their products within the
App-40
industry, defendants somehow managed to avoid
learning of this hazard.
Second, the reasonable inference arising from the
1910 and 1914 evidence of what was generally known
in the paint industry was further supported by
evidence that Fuller, NL, and SWC were each the
recipient of confirmatory information about this
hazard from the LIA in the 1930s. Each of the
defendants was a member of the LIA in the 1930s
when the LIA promulgated information to its
members about the “frequent occurrence” of children
being poisoned by lead paint from “toys, cradles, and
woodwork,” which included the fact that even a small
amount of lead could kill a child. The LIA information
given to its members (including all three defendants)
referenced a national newspaper article that had
stated that “[c]hildren are very susceptible to lead”
and that the “most common sources of lead poisoning
in children are paint on various objects within reach
of a child and lead pipes . . . .” Defendants, as the
recipients of this information from the LIA, must have
been aware at that time, in the early 1930s, of the
hazard to children created by the interior residential
use of lead paint. The fact that this information
confirmed the prior information of which they also
must have been aware served to solidify the
foundation for the trial court’s actual knowledge
findings.
All of this evidence provided substantial support
for the trial court’s actual knowledge findings as to the
three defendants under our deferential standard of
review. “The fact that it is possible to draw some
inference other than that drawn by the trier of fact is
App-41
of no consequence. . . . We must therefore view the
evidence in the light most favorable to the prevailing
party, giving it the benefit of every reasonable
inference . . . .” (Jessup Farms v. Baldwin (1983)
33 Cal.3d 639, 660.)
Here, the evidence, while circumstantial, was
sufficient to support reasonable inferences that
defendants must have known in the early 20th century
that interior residential lead paint posed a serious risk
of harm to children. Since these reasonable inferences
support the trier of fact’s express findings that NL,
SWC, and Fuller harbored the requisite actual
knowledge, our deferential standard of review
precludes us from drawing contrary inferences, and
we must uphold the trial court’s actual knowledge
findings.
ConAgra claims that there was no evidence that
its predecessor, Fuller, knew in the early 20th century
that the use of lead paint in residential interiors would
pose a public health hazard. It maintains that Fuller
either did not know that children were consuming lead
paint or knew of only “isolated cases” of such behavior
that did not amount to a public health hazard.
ConAgra also contends that Fuller could not have been
aware of the risk of lower BLLs, since no test for BLLs
existed at the time, and could not have known of the
specific pathways by which children consume lead
dust, which were not proved until much later.
By 1914, as a major producer of lead paint since
the previous century, Fuller was well aware of the
public health hazard posed to children by interior
residential lead paint.
App-42
The 1910 congressional hearing and the 1914
published speech provide very strong circumstantial
evidence of Fuller’s actual knowledge. Fuller could not
have failed to learn from the hearing and the article
that deteriorated interior residential lead paint posed
a “very dangerous” risk to the “health” of the
inhabitants of those residences. Of course, this
knowledge was reinforced by information that the LIA
distributed to its members, including Fuller, in the
1930s discussing how it was a “frequent occurrence”
that children were poisoned by lead paint from “toys,
cradles, and woodwork” and noting that even a small
amount of lead could kill a child.29
In light of these facts, there is no merit to
ConAgra’s claims that Fuller did not know children
were consuming lead paint, that Fuller believed that
such events were infrequent, and that Fuller could not
have known that a small amount of lead could harm a
29 ConAgra contends that Fuller could not acquire knowledge
through the LIA because the LIA was not Fuller’s agent. It was
Fuller’s own participation in the LIA that led it to acquire the
requisite knowledge, not by means of any agency relationship
between Fuller and the LIA.
ConAgra argues that the trial court could not reasonably rely
on Fuller’s knowledge through the LIA because the court found
that ARCO did not have knowledge through the LIA. The trial
court’s finding as to ARCO did not expressly relate to the LIA.
The court found only that ARCO and its predecessors did not
have knowledge of “adverse health effects from exposure to
residential lead paint during the relevant time period.” Indeed,
the court’s rejection of liability for ARCO was based primarily on
a lack of evidence connecting ARCO’s predecessors to the 10
jurisdictions. ConAgra makes no attempt to demonstrate that the
evidence of Fuller’s participation in the LIA was identical to that
of ARCO’s predecessors.
App-43
child. Since Fuller was aware that deteriorating
interior residential lead paint exposed the occupants
of the residence to “very dangerous” lead dust,
knowledge of the specific pathway by which children
consume lead dust was not essential for Fuller to be
aware that lead paint on residential interiors posed a
risk of serious harm to children.
ConAgra also claims that the evidence was
insufficient to show Fuller’s knowledge because the
trial court erroneously permitted plaintiff’s experts to
opine about Fuller’s knowledge. Since the material
upon which the experts’ opinions were based provides
substantial support for those opinions, the court did
not err in admitting and relying on those opinions. We
assess ConAgra’s claim that some of the documents
relied on by the experts were inadmissible hearsay in
section IV(J)(1) of this opinion.
ConAgra asserts that Fuller was aware of the
dangers of lead dust solely in the occupational context.
As we have already explained, the evidence supports
the trial court’s finding that Fuller was aware of the
risks posed by lead paint on residential interiors. We
reject ConAgra’s challenge to the sufficiency of the
evidence to support the trial court’s express finding
that Fuller was aware of the public health hazard to
children posed by lead paint in residential interiors.
NL claims that the evidence was insufficient to
support the trial court’s actual knowledge finding
because plaintiff was required to prove that NL had
“knowledge in the early 1900s that children could get
dangerous levels of blood lead from intact lead paint
anywhere in any home . . . via invisible dust.” NL’s
claim is misleading. Our review of the trial court’s
App-44
actual knowledge finding requires us to examine the
record to determine whether there is substantial
evidence that NL knew in the early 1900s that interior
residential lead paint posed a significant risk of harm
to children. We need not find evidence that NL
understood precisely how children could be harmed by
interior residential lead paint so long as there is
substantial evidence that NL knew that interior
residential lead paint posed a significant risk of harm
to children.
Our examination of the record reveals that it
contains substantial evidence that NL had the
requisite actual knowledge by 1914. The 1910
congressional hearing and the 1914 published speech
were sufficient to make a leader in the lead paint
industry aware of the risk of serious harm that
interior residential lead paint posed to children. NL
claims that there was not substantial evidence that it
was aware in the early 20th century of the risks to
children of “low-level” lead exposure. Since the
information of which NL was aware suggested that
even adults were at serious risk from interior
residential lead paint, NL could not have failed to
understand that the risk to children would be at least
as great. NL, like Fuller, subsequently gained further
knowledge, from its participation in the LIA, that
children who ingested even very small amounts of lead
could suffer serious harm. The LIA informed its
members in the 1930s that even a small amount of
lead could kill a child. And, at a 1937 LIA conference,
a doctor informed LIA members that “[t]o get rid of the
lead in children is almost impossible.”
App-45
We find substantial evidence in the record to
support the trial court’s finding that NL had actual
knowledge of the risk of harm to children from interior
residential lead paint.
SWC claims that the trial court’s finding that it
had actual knowledge of the risk of harm to children
from interior residential use of lead paint was based
on “hindsight” because SWC could not have known “of
today’s alleged risk to children from ultra-low BLLs
that can come from ingesting lead in household dust.”
SWC’s premise is flawed. The trial court’s actual
knowledge finding may be upheld if there is
substantial evidence that SWC was aware at the
relevant time that interior residential lead paint
posed a significant risk of harm to children. It was not
necessary for there to be proof that SWC was aware of
the precise pathway by which children were exposed
to lead and or that those harms could occur even at
low BLL levels, particularly since there was no BLL
test in existence at the relevant time.
The evidence presented at trial established that
SWC knew no later than 1900 that lead paint was
prone to deterioration and that it posed a serious risk
of harm to those exposed to it. SWC began making lead
paint in 1880. By 1900, it knew that, because lead was
a “deadly cumulative poison,” and lead paint tended to
deteriorate, lead paint could be seriously dangerous.
SWC claims that its knowledge in 1900 of risks
from deteriorating lead paint was limited to exterior
use of lead paint, but the trial court could have
reasonably concluded that SWC knew that the
deterioration of interior residential lead paint would
pose an even more serious risk that would be
App-46
heightened with respect to young children who were
necessarily confined to the interiors of their homes.
We conclude that substantial evidence supports the
trial court’s finding that SWC had actual knowledge of
the serious risk of harm to children from interior
residential lead paint.
3.
Creating or Assisting in Creating a
Public Nuisance: Promotion
Defendants challenge the trial court’s findings
that they affirmatively promoted lead paint for
interior residential use.
“‘[T]he critical question is whether the defendant
created or assisted in the creation of the nuisance.’”
(Santa Clara I, supra, 137 Cal.App.4th at pp. 305306.) “A public nuisance cause of action is not
premised on a defect in a product or a failure to warn
but on affirmative conduct that assisted in the
creation of a hazardous condition. Here, the alleged
basis for defendants’ liability for the public nuisance
created by lead paint is their affirmative promotion of
lead paint for interior use, not their mere manufacture
and distribution of lead paint or their failure to warn
of its hazards.” (Santa Clara I, at pp. 309-310, italics
added.)
Defendants claim that the court could not base its
promotion findings on their advertising without
violating the First Amendment.30 They also contend
30 In a reply brief, defendants claim for the first time that we
must apply a heightened standard of substantial evidence review
to the court’s promotion finding because “First Amendment
rights are at stake.” Appellate courts ordinarily do not consider
new issues raised for the first time in an appellant’s reply brief
because such a tactic deprives the respondent of the opportunity
App-47
that reliance on the promotional advertising activities
of the LIA and the NPVLA would violate their First
Amendment right to free association.31 In addition, the
three defendants individually challenge the
sufficiency of the evidence to support the court’s
findings that each of them affirmatively promoted lead
paint for interior residential use.
Defendants’ reliance on the First Amendment is
misplaced. While “the creation and dissemination of
to respond to the contention. (Reichardt v. Hoffman (1997) 52
Cal.App.4th 754, 764-765 (Reichardt).) It is only upon a showing
of good cause for failing to raise the issue earlier that an appellate
court will address an issue that is initially raised in the reply
brief. (Ibid.) We decline to address this issue as defendants have
made no showing of good cause, and plaintiff has had no
opportunity to address this issue.
Furthermore, the only case they cite in support of this claim is
one in which the Court of Appeal acknowledged that a heightened
standard of review is appropriate where the issue is whether a
communication is unlawful. (San Francisco Unified School Dist.
ex. rel. Contreras v. First Student, Inc. (2013) 213 Cal.App.4th
1212, 1228.) In that case, the trial court had issued an injunction
barring certain communications. (Id. at p. 1228.) Here, the only
plausible First Amendment issue is defendants’ contention that
their “promotion” of lead paint for interior residential use was
protected by the First Amendment. The trial court’s order did not
bar any communications. In any case, since we conclude as a
matter of law that their advertisements were not protected by the
First Amendment, application of a heightened standard of review
would not assist defendants.
31 Defendants objected in the trial court on First Amendment
grounds to evidence that they had used commercial speech to
promote lead paint for interior residential use. They also objected
on First Amendment freedom of association grounds to evidence
based on their membership in the LIA and the NPVLA. The court
overruled both objections.
App-48
information are speech within the meaning of the
First Amendment” (Sorrell v. IMS Health Inc. (2011)
564 U.S. 552, 570), “[t]he Constitution . . . accords a
lesser protection to commercial speech than to other
constitutionally guaranteed expression.” (Central
Hudson Gas & Elec. Corp. v. Public Service
Commission of New York (1980) 447 U.S. 557, 562-563
(Central Hudson).) “[T]here can be no constitutional
objection to the suppression of commercial messages
that do not accurately inform the public about lawful
activity. The government may ban forms of
communication more likely to deceive the public than
to inform it, [citations], or commercial speech related
to illegal activity, [citation].”32 (Central Hudson, at pp.
563-564.)
“[T]he State does not lose its power to regulate
commercial activity deemed harmful to the public
whenever speech is a component of that activity.”
(Ohralik v. Ohio State Bar Ass’n (1978) 436 U.S. 447,
456.) The California Supreme Court has already
acknowledged that holding defendants liable in this
case for the public nuisance created by their promotion
of lead paint for interior residential use will not
“prevent defendants from exercising any First
32 “If the communication is neither misleading nor related to
unlawful activity, the government’s power is more
circumscribed. . . . Compliance with this requirement may be
measured by two criteria. First, the restriction must directly
advance the state interest involved; the regulation may not be
sustained if it provides only ineffective or remote support for the
government’s purpose. Second, if the governmental interest could
be served as well by a more limited restriction on commercial
speech, the excessive restrictions cannot survive.” (Central
Hudson, supra, 447 U.S. at p. 564.)
App-49
Amendment right or any other liberty interest.
Although liability may be based in part on prior
commercial speech, the remedy will not involve
enjoining current or future speech.” (Santa Clara II,
supra, 50 Cal.4th at p. 55; see also People v. Superior
Court (Olson) (1979) 96 Cal.App.3d 181, 195 [imposing
civil “penalties for the negligent dissemination of
untruthful or misleading advertising does not offend
the First Amendment.”].)
Defendants’ lead paint promotional advertising
and participation in trade-association-sponsored lead
paint promotional advertising were not entitled to any
First Amendment protections. Promotion of lead paint
for interior residential use necessarily implied that
lead paint was safe for such use. If defendants
promoted lead paint for interior residential use while
knowing that such use would create a public health
hazard, then their promotions were misleading and
not entitled to any First Amendment protection. If, on
the other hand, defendants did not promote lead paint
for interior residential use, or did not know at the time
they did so that such use would create a public health
hazard, those promotions would not establish that
defendants created or assisted in the creation of a
public nuisance. As any wrongful promotions would be
misleading and not entitled to First Amendment
protection, we find no First Amendment bar to the
trial court’s reliance on defendants’ promotions.
Defendants also make individual challenges to
the sufficiency of the evidence to support the trial
court’s findings that each of them affirmatively
promoted lead paint for interior residential use while
knowing of the public health hazard that such use
App-50
would create. Our review of these contentions requires
us to examine, among other things, the hundreds of
advertisements upon which plaintiff relied to show
that defendants had promoted lead paint for interior
residential use. We must note at the outset that, for a
number of reasons, a large number of these
advertisements did not promote interior residential
use of lead paint.
Some of these advertisements expressly promoted
only exterior use of lead paint. Others promoted a
particular brand without specifying any particular
paint. Numerous advertisements promoted lead paint
as “house paint” without expressly promoting it for
interior use.
Another group of these advertisements promoted
interior use of a particular paint without identifying
that paint as a lead paint, and without other evidence
that the particular paint promoted for interior use in
these advertisements was a lead paint. Stipulations
between plaintiff and NL and between plaintiff and
SWC established that certain paints promoted by NL
and SWC were lead paints, but there was no such
stipulation with regard to Fuller or as to paint
companies acquired by NL or SWC. And many of the
advertisements were not specific enough to identify
the promoted paint as one of those identified in the
stipulations.
Many of the advertisements were not placed by
NL, SWC, or Fuller, but instead by a paint store or a
hardware retailer. While there was evidence that
SWC financed half of the cost of its authorized dealers’
local advertisements and that NL “consistently
supported dealers’ local advertising,” plaintiff’s expert
App-51
acknowledged that there was no such evidence as to
Fuller. As there was no evidence that Fuller had any
involvement in the placement of advertisements by
hardware and paint stores, advertisements by those
stores cannot be attributed to Fuller and cannot show
that Fuller promoted lead paint for interior residential
use.33
Plaintiff also relied on the LIA’s two promotional
campaigns. The member companies that participated
in these campaigns funded them. Fuller was a
member of the LIA from 1928 to 1958. SWC was a
member of the LIA from 1928 to 1947. NL was an LIA
member from 1928 to 1978. NL and Fuller
participated in both of the LIA’s campaigns; SWC
participated in only the Forest Products campaign and
contributed funds to that campaign only from 1937 to
1941.
Because the LIA’s promotional campaigns
affected multiple defendants, we detail those
campaigns at the outset. The Forest Products
campaign, which ran from 1934 to 1941, was aimed at
having manufacturers of lumber, window frames, and
doors endorse lead paint. The purpose of the Forest
Products campaign, which was active in California,
33 For instance, a 1916 Santa Clara County “Farmers Union”
advertisement promoted for interior use a lead paint made by a
company acquired by Fuller. A 1934 advertisement placed by a
Monterey hardware store promoted Fuller’s lead paint “for use
on interior and exterior surfaces.” A 1940 Solano County
hardware store advertisement promoted Fuller’s lead paint for
“interior surfaces.” A 1942 Monterey County paint store
advertisement promoted Fuller’s lead paint for interior use. A
1949 Vallejo paint store advertisement promoted Fuller’s lead
paint as an “all-purpose house paint.”
App-52
was to promote the use of lead paint on lumber and in
residences. In 1934, the LIA persuaded lumber
manufacturers associations on the West Coast to
recommend the use of lead paint on lumber by
“enclos[ing] ‘Painting Instructions’ folders with all
bundles of siding” in 1935.34 In 1938, the LIA
persuaded the Western Pine Association to paint its
model home at the San Francisco World’s Fair “inside
and out with white lead and publicize this
specification.” Also in 1938, the LIA persuaded “sash
[(window frame)] and door manufacturers” to put
labels on 20,000,000 sashes and doors “featuring the
use of white lead and high-grade prepared paint.” In
1939, the LIA board was apprised that, due to the
Forest Products campaign, “‘[a]ll of the principal
producers of soft and hard lumber in the United States
such as redwood, cypresses, cedar, pine and others,
now specify white lead or high grade prepared paint
which contain white lead.’”
The LIA’s White Lead Promotion campaign,
which ran in two phases, phase one from 1939 to 1944
and phase two from 1950 through 1952, was intended
to increase the market for white lead.35 This campaign
34 Plaintiff’s expert testified that these painting instructions
included “methods for how to use paint on sidings and on floors
and on objects in homes . . . .” (Italics added.) The painting
instructions were not in evidence, and the expert relied solely on
an LIA document that referred only to “siding.” The expert also
asserted that these instructions pertained to “siding interiors,”
but he did not explain why the word “siding” would have been
used in the 1930s in reference to interior paneling.
35 Other LIA advertisements in 1939 and 1940 did not expressly
promote lead paint for interior use and mentioned only exterior
use.
App-53
produced hundreds of advertisements promoting
white lead. LIA advertisements in 1939 and 1940
expressly promoted lead paint for interior residential
use. A 1939 LIA advertisement in the Hardware
Retailer reproduced a letter to the LIA from the
Douglas Fir Plywood Association touting lead paint for
interior walls and ceilings in addition to “exterior
siding.” In 1940, LIA advertisements in “National
Painters Magazine” and “American Painter and
Decorator” promoted interior residential use of lead
paint and proclaimed such things as “white lead lends
itself ideally to any paint styling desired by owner or
architect, inside or out.” 1940 LIA advertisements in
American Paint and Oil Dealer, American Painter and
Decorator, National Painters Magazine, The Painter
and Decorator, American Builder, Hardware Retailer,
and Hardware Age all promoted lead paint for interior
residential use.
By 1941, the LIA’s campaigns had created a great
increase in the sale of lead paint compared to non-lead
paint. During the war, lead paint sales declined, and
they continued to decline after the war. The LIA
briefly revived the White Lead Promotion campaign in
the early 1950s, but it subsequently stopped
specifically promoting white lead paint. Although the
LIA’s campaigns did not reverse the long-term trend
of less use of lead pigments, these campaigns did
prolong the use of lead pigments that otherwise
probably would have ceased to be used.36 More white
lead was used during the Depression (the late 1920s
36 It was unclear whether white lead sales would have declined
more quickly if there had been no White Lead Promotion
campaign.
App-54
and 1930s) than had been used previously, and the
LIA attributed this increase to its campaigns.
With this background in mind, we proceed to
review defendants’ individual contentions.
a.
ConAgra
ConAgra contends that there is not substantial
evidence that Fuller promoted lead paint for
residential interiors with the requisite knowledge
because (1) Fuller’s post-1929 advertisements did not
tell consumers to use lead paint on residential
interiors, (2) Fuller’s post-1935 advertisements did not
mention lead or were only for exterior paint, (3) Fuller
did not sell any lead paint for interiors after 1948, and
(4) Fuller did not participate in the LIA’s promotions.
Evidence at trial established that Fuller sold lead
paint in the 10 jurisdictions from 1894 to 1961.
Between 1894 and 1948, Fuller marketed two lead
products: Pure Prepared Paint and Pioneer White
Lead in Oil.37 Fuller also marketed paints and other
coatings that did not contain lead. Fuller’s lead paints
were sold at its own stores and by independent dealers
in all 10 jurisdictions between 1894 and 1961.
Plaintiff’s experts testified that Fuller promoted the
use of white lead by distributing brochures for
consumers and painters that instructed them to use
Fuller’s lead paints for residential interiors and
exteriors. They also asserted that Fuller’s
advertisements in the 10 jurisdictions instructed
consumers to use Fuller’s white lead paints on their
residences.
37 Fuller also owned the Phoenix and Nason paint companies
and marketed Phoenix’s lead paint.
App-55
A large number of the advertisements for Fuller
products in the record are not for Fuller’s lead paint
but for other Fuller paints or coatings.38 Another
group of these advertisements simply generally
advertised Fuller paints with no specification of which
ones or without specifying for what purposes, or with
specifications of the purposes for each paint that did
not suggest that Fuller’s lead paint be used for
interiors. Plaintiff’s expert testified: “In my expert
opinion, they all are advertising Fuller Paints which
contain lead. And they are actually ads that are
informing consumers to use Fuller products without
any acknowledgment they are containing lead. Some
of them have lead in it, some don’t.” Since plaintiff’s
expert acknowledged that Fuller made both lead paint
and non-lead paint, the mere fact that Fuller
advertised its products does not establish that it
promoted its lead paint for interior residential use. We
disregard plaintiff’s expert’s testimony on this point
because it lacks any rational basis in the evidence.
Many advertisements in the record were for
Fuller’s lead paint but did not expressly suggest that
it be used for interiors. Some of these advertisements
described Fuller’s lead paint as “house paint.”
However, another group of Fuller advertisements
explicitly promoted Fuller’s lead paints for “all”
residential purposes. For example, a 1927 Monterey
Fuller advertisement promoted Fuller’s lead paint “for
all general purposes.” Fuller advertisements in 1937
38 The record contains hundreds of advertisements for Fuller
products. Fuller advertised its “Nitrokote,” “Fullerglo,” “Enamel,”
and other specific paints, and there was no evidence that these
paints contained lead.
App-56
in the San Francisco Chronicle and the Los Angeles
Times described Fuller’s lead paint as “all purpose,
‘house’ paint.” While these advertisements suggested
that Fuller’s lead paint could be used for any purpose,
including interior residential use, the most important
evidence of Fuller’s promotion of its lead paint for
interior residential use was Fuller’s 1931 brochure for
its lead paint. This brochure’s “Directions for Use”
instructed consumers to use this lead paint for
residential interiors. Since Fuller’s advertisements
frequently suggested that consumers obtain brochures
from a Fuller dealer, the brochure’s “Directions for
Use” amounted to instructions to all of those who
purchased Fuller’s lead paint to use it for residential
interiors. Fuller also participated in both of the LIA’s
promotional campaigns in the 1930s and 1940s, which
promoted lead paint for interior residential use.
This evidence rebuts ConAgra’s contentions.
Fuller did promote its lead paint after 1929 and after
1935, both by instructing consumers to use its lead
paint for interior residential use and by participating
in the LIA’s campaigns promoting lead paint for
interior residential use. It is immaterial whether
Fuller’s advertisements mentioned the word “lead” so
long as the paint promoted in the advertisement was
a lead paint, as it was. Fuller’s claim that it ceased to
produce and sell lead paint in 1948 is immaterial even
if true. It was not necessary to show that Fuller
continued to assist in the creation of the public
nuisance throughout the entire period if its conduct
constituted a substantial factor in causing the public
nuisance (an issue we address in section IV(A)(4) of
this opinion). Fuller’s claim that it did not participate
App-57
in the LIA’s promotions was rebutted by substantial
evidence at trial.
We conclude that there is substantial evidence
that Fuller itself promoted its lead paint for interior
residential use at least beginning in 1931 and that it
continued to do so as part of the LIA’s promotional
campaigns in the 1930s and 1940s. Since the evidence
supports the trial court’s finding that Fuller knew of
the danger that such use would create for children at
that time, there is substantial evidence that Fuller
promoted lead paint for interior residential use with
the requisite knowledge.
b.
NL
NL contends that its advertisements were not
misleading because they merely described how well
lead paint would protect and beautify interior walls
and woodwork. As we have already explained,
promotion of lead paint for interior residential use was
inherently misleading because it implicitly asserted
that it was safe for such use when it was not. NL also
asserts that the court’s promotion finding cannot be
upheld because there was no evidence that NL
promoted lead paint for interior residential use after
1950. As we have noted above, the period during which
a defendant assisted in the creation of a public
nuisance is relevant only as to causation; it does not
rebut a showing of affirmative promotion with the
requisite knowledge.
Substantial evidence supports the trial court’s
finding that NL affirmatively promoted lead paint for
interior residential use with the requisite knowledge.
NL stipulated that it manufactured, sold, and
promoted lead paint for residential use in the 10
App-58
jurisdictions from 1900 to 1972 and that its “White
Lead-in-Oil,” “Dutch Boy House Paint 104,” “Dutch
Boy House Paint 111,” and “Dutch Boy House Paint
116” contained white lead. No evidence was produced
at trial that any other NL paint products contained
white lead.39
Plaintiff’s expert testified that NL promoted its
Dutch Boy lead paint for interior residential use. NL
produced “little illustrated books [in which] children
were provided with both a story and a coloring pallet
of paint that basically depicted the ways in which
Dutch Boy white lead paint protected children from all
sorts of onslaughts.” He testified that NL
“[s]pecifically promoted the use” of lead paint in “play
rooms, . . . homes and on to surfaces and even on their
furniture.” Plaintiff’s expert also noted that NL’s
advertisements did not necessarily disclose whether
Many of the advertisements in the record were for BassHueter products. NL purchased Bass-Hueter Paint Company in
1916, and Bass-Hueter merged with NL in 1930. No evidence was
produced at trial that any specific Bass-Hueter paints contained
white lead. Although the record contains 1931 advertisements for
Bass-Hueter paints that promoted interior residential use, there
is no evidence that those paints were lead paints. A 1933 Santa
Clara County hardware store advertisement promoted BassHeuter Pure Lead and Oil Paint, but it did not suggest that it be
used for residential interiors. Although Bass-Heuter
advertisements in 1922 in Solano County and in 1925 in Santa
Clara County described Bass-Heuter paints as having
“permanent pigments, a base consisting of a combination of pure
carbonate of lead and oxide of zinc, ground in refined linseed oil,”
there is no indication that these advertisements were admitted
or could properly be admitted for their truth. Accordingly, the
Bass-Hueter advertisements do not establish that NL promoted
lead paint for interior residential use.
39
App-59
NL’s lead paint contained lead and did not always
distinguish between the use of lead paint on interiors
and its use on exteriors. As we will explain, the
material upon which plaintiff’s expert based his
testimony provides substantial support for his
testimony.
NL’s advertisements from the early 20th century
demonstrate that NL repeatedly promoted its lead
paint for interior residential use. A 1915 NL
advertisement in the San Francisco Chronicle did so.
A 1924 NL advertisement in National Geographic
Magazine did so. A 1929 NL advertisement in the Los
Angeles Times did so. 1929 NL advertisements in the
San Francisco Chronicle and the Oakland Tribune
promoted lead paint for “your stucco house or for any
other surface.” (Italics added.) A 1938 San Diego
advertisement by a paint store promoted Dutch Boy,
NL’s brand, as “All Purpose Lead.” A 1950 San Diego
advertisement by a paint store promoted NL’s lead
products for interior residential use. And NL
participated in both of the LIA’s promotional
campaigns in the 1930s and 1940s promoting lead
paint for interior residential use.
NL’s 1929 “paint book” for children showed a
“Dutch Boy Painter” who tells the children, “This
famous Dutch Boy Lead of mine [¶] Can make this
playroom fairly shine [¶] Let’s start our painting right
away [¶] You’ll find the work is only play.” The book
showed children stirring and painting with clearly
labeled containers of Dutch Boy White Lead paint and
then playing in their newly painted playroom. At the
end of the book, it said: “For durable economical
paint—inside or outside [¶] Paint with lead [¶] Dutch
App-60
Boy White-Lead.” Every page of the “paint book”
instructed children to give their parents the “coupon”
in the middle of the book.40 NL’s paint book contained
“paper chips of paint” for children to use to color the
pictures in the book. NL used this paint book as a
promotion “for many years.” This paint book obviously
promoted lead paint for interior residential use.
NL’s 1949 salesman’s manual instructed NL’s
salesmen that NL’s lead paints could “handle any
painting job, exterior or interior” on any building. The
manual told the salesmen that NL’s “Lead Mixing Oil”
was appropriate for “interior surfaces.”
NL’s 1950 “Handbook on Painting” encouraged
the use of white lead paint on interior surfaces: “On
interiors white lead is desired for its unique richness
and solid beauty of finish. Also, the durability of white
lead paint enables it to stand up under frequent
washing—a big money saver in such places as
hospitals and hotels.” “The customary flat paint for
interior work is made by mixing white lead with either
Lead Mixing Oil or flatting oil.” “Dutch Boy Lead
Mixing Oil, when mixed with white lead in the proper
proportions, makes flat paint that can be used on
exterior as well as interior surfaces.” “Furthermore,
white lead and Lead Mixing Oil has the sturdy wear
and beauty of finish characteristic of all white lead
paint, whether exposed to weather or used inside.
[¶] White lead and Lead Mixing Oil can be used for all
coats on plaster and wallboard.” NL’s instructions for
40 In NL’s 1949 salesman’s manual, NL noted that the “paint
book” was one of its “most successful promotions” of its paint.
App-61
use in this handbook explicitly advocated the use of
lead paint on interiors.
Substantial evidence supports the trial court’s
finding that NL affirmatively promoted lead paint for
interior residential use with the requisite knowledge.
NL extensively promoted its lead paint for interior
residential use from 1915 through 1950. Because NL
knew of the danger to children from lead paint on
residential interiors no later than 1914, substantial
evidence supports the trial court’s finding that NL’s
subsequent promotions of lead paint for such use were
done with the requisite knowledge.
c.
SWC
SWC contends that plaintiff did not present
evidence of any advertisement by SWC promoting lead
paint for interior residential use.
SWC stipulated that it began manufacturing lead
paint in 1880 and began manufacturing white lead
carbonate pigment in 1910. SWC manufactured Old
Dutch Process (ODP) white lead in oil from 1910 to
1947. SWC manufactured “Inside Floor Paint,” some
colors of which contained white lead, between 1910
and 1913. SWC’s other white lead paints were some of
its SWP “house paint” colors until 1950, some of its
“Family Paint” colors in the 1940s,41 its “Porch and
41 SWC and plaintiff stipulated that there was “no evidence”
that SWC’s “Family Paint,” a paint that was intended for and
promoted for interior residential use, “ever contained white lead
sulfate” or “ever contained white lead carbonate pigment prior to
1941.” Interestingly, SWC’s 1926 training manual for its
representatives stated that Family Paint, which it stated “will
give good service on inside work,” contained “White Lead Sulfate”
App-62
Deck” paint, and its “Concrete & Stucco” paint.42 SWC
also sold Monarch House Paint, ACME Quality House
Paint, and Lowe Brothers High Standard House
Paint, which were all lead paints. In a 1934
promotional booklet, SWC proclaimed that it was the
“world’s largest paint producer” and “one of the
country’s largest producers of White Lead.”
SWC promoted and sold its white lead products
for residential use in the 10 jurisdictions. The primary
message conveyed in advertisements for SWC’s
paints, Monarch paints, and ACME’s paints was that
there was a specific coating for each purpose and that
it was important to get the right coating for each type
of use. For example, a 1903 SWC advertisement read:
“No matter what you want to paint, . . . you’ll get best
results and save money if you use [¶] THE SHERWINWILLIAMS PAINTS [¶] A special paint for each
purpose.” A large group of SWC advertisements
simply generically advertised SWC’s brand, without
specifying any particular paints. Many SWC
pigment. SWC and plaintiff also stipulated that they had
discovered no post-1936 advertisements for SWC’s Family Paint.
In view of the parties’ stipulations, we are required to disregard
evidence that SWC’s Family Paint was promoted for interior
residential use prior to 1941. 1901 and 1904 advertisements in
the Los Angeles Times promoted SWC Family Paint for interior
use. A 1923 SWC advertisement in the San Francisco Examiner
promoted SWC’s Family Paint as “an all-round paint for inside
use.” A 1926 advertisement in the Oakland Tribune promoted
SWC Family Paint as a “household paint.”
42 For instance, SWC’s SWP Mildew Resisting White paint
contained lead prior to 1954. Some of the colors in SWC’s SWP
Colors contained lead until 1950. In 1938, SWC also sold a lead
paint called Zilo.
App-63
advertisements were for SWC’s non-lead “Kemtone”
paint.
Advertisements for SWC’s SWP House Paint
often specified that it was for exterior use. Others
simply referred to SWP as “house paint” without
mentioning interior use. Still others identified SWP as
being for “wood surfaces” or for all “woodwork”
surfaces. However, there were also advertisements
promoting SWP for interior residential use. 1904 SWC
advertisements in the Los Angeles Times and the San
Diego Union promoted SWP for “inside” use.43 In
addition, SWC participated in the LIA’s Forest
Products campaign from 1937 to 1941, which
promoted lead paint for interior residential use and
particularly for use on doors and window frames.
SWC had the requisite knowledge in 1900 of the
public health hazard posed by lead paint, but it
nevertheless continued to promote lead paint for
interior residential use thereafter. This evidence
supports the trial court’s finding that SWC engaged in
the requisite wrongful promotion.
4.
Causation
Defendants contend that plaintiff did not produce
substantial evidence that their promotions of lead
43 Although many of the advertisements for SWC paints were
placed by hardware stores or other retailers, SWC paid half of the
cost of advertising by its authorized dealers, so these
advertisements may properly be attributed to SWC. A 1924
lumber store advertisement in Monterey for Monarch lead paint
suggested that it could be used for interiors. However, the
stipulation between SWC and plaintiff was that this paint
contained lead between 1925 and 1930, which does not include
1924 when this advertisement was placed.
App-64
paint for interior residential use were a substantial
factor in causing the nuisance that the trial court
required them to abate. First, they contend that there
was no evidence that their promotions actually had an
impact on the use of lead paint on residential interiors.
Second, they contend that their wrongful promotions
were too remote from the current presence of any
public health hazard created by interior residential
lead paint, which, they claim, is largely due to owner
neglect, renovations, intervening actors (architects,
painters, etc.), and repainting that has taken place in
the interim. Third, they argue that, because they did
not promote lead paint for interior residential use
after 1950, they could not be held responsible for use
of lead paint on residential interiors of homes built
after 1950. The trial court’s judgment required
defendants to remediate interior lead paint in all
homes built before 1980, even though most of those
homes were built after 1950. Fourth, they maintain
that there was no evidence that their promotions of
lead paint for interior residential use had a causal
connection to the water leaks and soil lead that the
court ordered them to remediate. Fifth, defendants
claim that plaintiff was required to show that their
individual lead paints are currently present in a large
number of homes in the 10 jurisdictions. Sixth, they
argue that due process requires that their liability for
remediation be proportionate to their individual
contributions.
Causation is an element of a cause of action for
public nuisance. (Melton v. Boustred (2010) 183
Cal.App.4th 521, 542.) “A connecting element to the
prohibited harm must be shown.” (In re Firearm Cases
(2005) 126 Cal.App.4th 959, 988 (Firearm Cases).) The
App-65
parties agree that the causation element of a public
nuisance cause of action is satisfied if the conduct of a
defendant is a substantial factor in bringing about the
result. (Citizens for Odor Nuisance Abatement v. City
of San Diego (2017) 8 Cal.App.5th 350, 359 [applying
substantial factor standard in a public nuisance
action].) “‘The substantial factor standard is a
relatively broad one, requiring only that the
contribution of the individual cause be more than
negligible or theoretical.’ [Citation.] Thus, ‘a force
which plays only an “infinitesimal” or “theoretical”
part in bringing about injury, damage, or loss is not a
substantial factor’ [citation], but a very minor force
that does cause harm is a substantial factor [citation].”
(Bockrath v. Aldrich Chemical Co., Inc. (1999) 21
Cal.4th 71, 79.)
a.
Impact and Remoteness
In this case, there was plenty of evidence that
defendants’ affirmative promotions of lead paint for
interior residential use played at least a “minor” role
in creating the nuisance that now exists.
First, all three defendants participated in the
LIA’s Forest Products campaign. The Forest Products
campaign began in 1934. In 1935, the LIA reported
that its Forest Products campaign had resulted in
some manufacturers of leadless paints “changing their
formulas to include lead.” In 1939, the LIA reported to
its members that, as a result of the Forest Products
campaign, (1) “[a]ll the principal producers of soft and
hard lumber in the United States . . . specify white
lead or high grade prepared paint which contains
white lead” through the “distributi[on of] painting
instruction leaflets (2,000,000 copies)”; (2) “[s]ome
App-66
paint companies have increased the lead content of
their paint”; and (3) “sash and door manufacturers”
would be producing “20,000,000 labels to be affixed to
nearly all the sash and doors in the United States,
featuring the use of white lead and high-grade
prepared paint.” In 1941, the LIA reported that the
benefits of the Forest Products campaign were
continuing.
“Lumber
associations
continued
distributing, at their own expense, thousands of
painting leaflets recommending white lead or the
highest grade prepared paints to be used on their
products” and that the “National Door Manufacturing
Association” was “the latest to use painting leaflets” to
promote the use of white lead. The lumber
manufacturers were continuing to include “painting
instruction leaflets” with their lumber products. Since
lead paint on doors and windows is one of the most
hazardous uses for children due to the dust created by
their friction surfaces, this campaign played a
significant role in creating the nuisance that now
exists.
Second, both NL and Fuller gave consumers of
their lead paints explicit instructions to use those
paints on residential interiors. Fuller’s 1931 brochure
for its lead paint contained “Directions for Use”
instructing consumers to use this lead paint for
residential interiors. Since Fuller’s advertisements
frequently suggested that consumers obtain brochures
from a Fuller dealer, the brochure’s “Directions for
Use” constituted instructions to all those who
purchased Fuller’s lead paint to use it for residential
interiors. NL produced its 1929 paint book, which
promoted lead paint for interior residential use, and
NL published its 1950 “Handbook on Painting,” which
App-67
explicitly recommended that consumers use white
lead paint on interior surfaces.
In sum, by persuading window and door
manufacturers to attach written recommendations to
all windows and doors that lead paint should be used
on those windows and doors, all three defendants
certainly played a significant role in causing lead
paint to be used on at least some of those windows and
doors. Further, NL and Fuller, by explicitly
instructing consumers to use their lead paints on
residential interiors, played an even more direct role
in causing lead paint to be used in such a manner.
Again, the trial court could reasonably infer that at
least some of those who were the targets of these
recommendations heeded them. That is all that the
substantial factor test requires.
We cannot credit defendants’ claim that there was
no evidence that their promotions were even “a very
minor force”—”a substantial factor”—in causing the
presence of lead paint on residential interiors in the
10 jurisdictions. The LIA’s extensive advertising
campaigns, in which all three defendants participated,
affirmatively promoted to painters, architects,
retailers, and consumers the use of lead paint on
residential interiors, and each defendant also
individually promoted to consumers lead paint for use
on residential interiors in the 10 jurisdictions. The
LIA judged its promotional campaigns to be a success,
and the fact that lead paint remains in place on
residential interiors in many homes throughout the 10
jurisdictions decades after all of these promotions
ceased reflects that this belief was accurate. We find
reasonable the inference that each individual
App-68
defendant’s promotion of lead paint for interior
residential use, both through the LIA promotional
campaigns and their individual promotions, were at
least “a very minor force” in leading to the current
presence of interior residential lead paint in a
substantial number of homes in the 10 jurisdictions.
Defendants also contend that their wrongful
promotions were too remote from the current hazard
to be its “legal cause.” They claim that, due to the lapse
of time, this hazard is more closely attributable to
owner neglect, renovations, painters, architects, and
repainting. “A tort is a legal cause of injury only when
it is a substantial factor in producing the injury.”
(Soule v. General Motors Corp. (1994) 8 Cal.4th 548,
572.) “‘“‘Legal cause’ exists if the actor’s conduct is a
‘substantial factor’ in bringing about the harm and
there is no rule of law relieving the actor from liability.
[Citations.]”’ [Citations.] ‘“The doctrine of proximate
cause limits liability; i.e., in certain situations where
the defendant’s conduct is an actual cause of the harm,
he will nevertheless be absolved because of the
manner in which the injury occurred.”’” (Lombardo v.
Huysentruyt (2001) 91 Cal.App.4th 656, 665-666.)
“‘Proximate cause involves two elements.’
[Citation.] ‘One is cause in fact. An act is a cause in
fact if it is a necessary antecedent of an event.’
[Citation.] . . . [¶] By contrast, the second element
focuses on public policy considerations. Because the
purported causes of an event may be traced back to the
dawn of humanity, the law has imposed additional
‘limitations on liability other than simple causality.’
[Citation.] ‘These additional limitations are related
not only to the degree of connection between the
App-69
conduct and the injury, but also with public policy.’
[Citation.] Thus, ‘proximate cause’ “is ordinarily
concerned, not with the fact of causation, but with the
various considerations of policy that limit an actor’s
responsibility for the consequences of his conduct.”’”
(Ferguson v. Lieff, Cabraser, Heimann & Bernstein
(2003) 30 Cal.4th 1037, 1045.) “[T]here is no bright
line demarcating a legally sufficient proximate cause
from one that is too remote. Ordinarily the question
will be for the [factfinder], though in some instances
undisputed evidence may reveal a cause so remote
that a court may properly decide that no rational trier
of fact could find the needed nexus.” (People v. Roberts
(1992) 2 Cal.4th 271, 320, fn. 11.)
Defendants argue that they should be absolved of
responsibility for the current hazard because their
wrongful conduct was “too remote” and “attenuated”
from the current hazard.44 This was a question of fact
for the trial court. A rational factfinder could have
concluded that defendants’ wrongful promotions of
lead paint for interior residential use were not unduly
remote from the presence of interior residential lead
paint placed on those residences during the period of
defendants’ wrongful promotions and within a
reasonable period thereafter. The connection between
44 The cases that defendants rely on provide no support for their
argument. For instance, the portion of Cabral v. Ralphs Grocery
Co. (2011) 51 Cal.4th 764 (Cabral) that they cite concerned a duty
determination, not a causation determination. (Cabral, at p. 779.)
The firearm manufacturers in Firearm Cases, supra, 126
Cal.App.4th 959, unlike defendants, did not affirmatively
promote their products for a dangerous use. (Firearm Cases, at
pp. 988-989.) City of Chicago v. American Cyanamid Co. (Ill. App.
Ct. 2005) 355 Ill.App.3d 209 was decided under Illinois law.
App-70
the long-ago promotions and the current presence of
lead paint was not particularly attenuated. Those who
were influenced by the promotions to use lead paint on
residential interiors in the 10 jurisdictions were the
single conduit between defendants’ actions and the
current hazard. Under these circumstances, the trial
court could have reasonably concluded that
defendants’ promotions, which were a substantial
factor in creating the current hazard, were not too
remote to be considered a legal cause of the current
hazard even if the actions of others in response to
those promotions and the passive neglect of owners
also played a causal role. The court could therefore
have concluded that defendants’ promotions were the
“legal cause” of the current nuisance.
b.
Post-1950 Homes
We find merit in defendants’ claim that the record
lacks substantial evidence to support the court’s
finding that their wrongful promotions were causally
connected to post-1950 homes containing interior lead
paint built before 1980.
Plaintiff claims that defendants’ wrongful
promotions “sustained, increased, and prolonged the
use of lead paint in homes throughout the 20th
century.” (Italics added.) It asserts that this can be
“inferred” from the “sheer breadth of Defendants’
promotional activities” and the fact that there is
currently lead paint in homes in the 10 jurisdictions.
Plaintiff also claims that NL continued to promote
lead paint for interior residential use beyond 1950.
First of all, plaintiff did not produce any evidence
of an affirmative promotion by NL, SWC, or Fuller of
lead paint for interior residential use after 1950. The
App-71
advertisements that plaintiff identifies as post-1950
NL promotions did not promote lead paint for interior
residential use. Those advertisements promoted NL’s
“Dutch Boy” brand of paints and identified interior
residential use as one of the uses for NL’s “Dutch Boy”
brand of paints without suggesting that any lead paint
be used for interiors. NL stipulated at trial that its
“White Lead-in-Oil” and three of its “Dutch Boy”
paints contained white lead, and plaintiff presented no
evidence that any other NL paint product contained
lead. Since NL indisputably made many Dutch Boy
paints, NL’s promotion of its brand for many uses,
including interior residential use, did not amount to
an affirmative promotion of lead paint for interior
residential use. Indeed, plaintiff’s argument seems to
be based on the idea that the mere fact that these
advertisements identified National Lead Company as
the maker of Dutch Boy paints transformed
advertisements for non-lead paints for interior use
into promotions of lead paint for interior use. We reject
this unfounded argument.
NL contends that the evidence could not support
a finding that it caused the use of lead paint on
residential interiors after 1955 because, according to
NL, all lead paint bore a label marking it as not for
interior residential use beginning in 1955. The only
citation to the record that NL provides is to testimony
by a defense expert about a standard created by the
American Standards Association in 1955. The expert
testified that the LIA had participated in the creation
of that standard. He referenced a defense exhibit, a
barely legible copy of which appears in the record, that
apparently contains the 1955 standard. This standard
states: “These specifications cover the requirements
App-72
for coatings (such as paints, enamels, lacquers, etc.
applied in liquid form) which are deemed suitable
from a health standpoint to be used to paint children’s
toys or furniture or interior surfaces so that the
danger of poisoning will be minimized if, by chance,
some of this coating should be chewed off and
swallowed by a child.” “A liquid coating material to be
deemed suitable, from a health standpoint, for use on
articles such as furniture, toys, etc, or for interior use
in dwelling units where it might be chewed by
children” should not contain more than 1 percent lead.
The standard states that coatings complying with it
“may be marked: ‘Conforms to American Standard
Z66.1-1955, for use on surfaces that might be chewed
by children.” Notably, this standard does not impose
any labeling requirement of any kind on lead paint.
Although one might draw an inference that the
LIA’s participation in the creation of this standard
encouraged the compliance of its members, the trial
court was not required to draw that inference. Indeed,
the standard itself stated: “The existence of an
American Standard does not in any respect preclude
any party who has approved of the standard from
manufacturing, selling, or using products . . . not
conforming to the standard.” Moreover, this standard
did not even suggest a label for lead paint. It pertained
to a label for non-lead paints. Nor is there any
affirmative evidence in the record that even this
standard was enforced by anyone or that any
defendant complied with it beginning in 1955.
Nevertheless, plaintiff’s assertion that the
current presence of lead paint on residential interiors
itself
establishes
that
defendants’
pre-1951
App-73
promotions caused it to be placed there is speculative
and attempts to eliminate the causation element
entirely. While we can accept the inference that
defendants’ pre-1951 promotions increased the use of
lead paint on residential interiors during the period of
those promotions, we reject plaintiff’s claim that it is
a reasonable inference that the impact of those
promotions may be assumed to have continued for the
next 30 years. We can find no evidence in the record
that supports an inference that the promotions of
defendants prior to 1951 continued to cause the use of
lead paint on residential interiors decades later.45 We
therefore conclude that we cannot uphold the trial
court’s judgment requiring defendants to remediate
all houses built before 1981 because there is no
evidence to support causation as to the homes built
after 1950.46
c.
Water Leaks and Soil Lead
Defendants also challenge on causation grounds
the court’s inclusion of soil lead and water leaks in its
remediation plan.
45 ConAgra contends that the court erred in treating homes
built before 1981 as an “indivisible group.” We do not believe that
the court treated these homes as an indivisible group. The court’s
remediation plan explicitly assigned homes built before 1950 to
the highest priority, while homes built from 1950 to 1981 were
assigned a lower priority. Since the age of a home is generally
discoverable, homes may be readily distinguished from one
another based on the date they were built. Indeed, by limiting the
remediation plan to homes built before 1981, the court’s
remediation plan already treated homes differently based on
their age.
46 On remand, the trial court will need to recalculate the
amount of the abatement fund accordingly.
App-74
This was a disputed issue at trial. Plaintiff’s
experts testified: “[L]ead paint gets into the soil from
several routes. One is by the friction and impact
surfaces, opening and closing windows and doors on a
home with lead-based paint. It also results from the
weathering of paint exterior on the home, rain and sun
hits the paint, it deteriorates over time. And also
previous paint jobs, generally where they are sanding
and scraping have contributed to soil lead
contamination around the home.” Lead concentrations
are highest close to the home “[b]ecause we know that
the exterior is subject to weathering, because windows
on the exterior often have high lead concentrations
and they are subject to friction and impact, and
because the previous painting jobs could have caused
sanding and scraping on the exterior of a home which
often then resides as contamination of the soil close to
the home.”47 “[L]ead-based paint in housing now is the
major source of contamination of both soil and house
dust.”48 Thus, plaintiff’s evidence established that a
prime contributor to soil lead was lead paint on the
friction surfaces of windows and doors, which are
interior, rather than exterior surfaces. In keeping with
47 One of plaintiff’s experts responded to the question “What
are sources of lead in dust in [sic] soil, other than—your view is
that the sources for dust and soil lead are lead-based paint;
right?” by saying “Sure. Where leaded paints are available. I
mean in the housing unit.” This response does not necessarily
attribute soil lead to interior lead paint as the question referred
to both soil lead and household dust lead.
48 He also testified that “lead in housing” consisted of “lead
paint, lead dust in housing, and lead in soil.” Plaintiff’s expert
testified that soil lead and dust lead inside houses are linked
because “the soil is often tracked into the home on people’s shoes.”
App-75
this evidence, the judgment requires remediation of
soil lead only where the home itself contains interior
lead paint. Under these circumstances, the evidence
supports the court’s implied finding that soil lead in
those homes has been caused by interior residential
use of lead paint.
The court’s decision to include remediation of
water leaks in the judgment is not a causation issue.
Plaintiff did not contend that the water leaks should
be remediated because they were caused by
defendants’ promotions. The reason why remediation
of water leaks is properly part of the remediation plan
is that the court did not order remediation of all
interior lead paint. As water leaks could cause intact
interior lead paint to deteriorate and present a
dangerous hazard to children, the remediation of
water leaks was an appropriate lesser alternative to
removal of all interior lead paint. Since defendants’
wrongful promotions caused the presence of interior
lead paint, the court did not err in requiring
remediation designed to prevent that interior lead
paint from harming children in those homes.
d.
Identification of Individual Paint
Defendants contend that their promotions cannot
be found to have caused the presence of interior lead
paint in homes in the 10 jurisdictions without proof
that paint made by each of them is currently present
in those homes. This contention misconstrues the
basis for defendants’ liability. Defendants are liable
for promoting lead paint for interior residential use.
To the extent that this promotion caused lead paint to
be used on residential interiors, the identity of the
manufacturer of that lead paint is irrelevant. Indeed,
App-76
the LIA’s promotions did not refer to any
manufacturer of lead paint, but were generic. What
matters is whether defendants’ promotions were a
substantial factor in leading to the use of lead paint on
residential interiors. Substantial evidence supports
the court’s causation finding on that basis.
e.
Proportioned Liability
Defendants’ final challenge to the court’s
causation finding is based on their claim that they
could not be held liable except in proportion to their
individual contributions to the creation of the public
nuisance. They claim that due process precluded the
imposition of a remedy that was “grossly
disproportionate to a defendant’s conduct.”
None of the cases they cite concerns causation in
a public nuisance case. Proportionality is not a
causation issue. Defendants may be held liable for a
public nuisance that they assisted in creating if their
wrongful promotions were a substantial factor in the
creation of that public nuisance. As we have already
concluded, the evidence supports the trial court’s
finding at least as to homes built before 1951.
Proportionate liability is something that defendants
may be able to determine by means of litigation
between themselves, but the fact that the remediation
plan does not apportion liability among defendants
does not infect the court’s causation finding.
Citing the Restatement, defendants argue that “a
defendant can be liable only for its own contribution to
a nuisance.” However, the Restatement comment
upon which they rely does not support their
contention. It says: “[T]he burden rests upon the
defendant to produce sufficient evidence to permit the
App-77
apportionment to be made. [¶] When the
apportionment is made, each person contributing to
the nuisance is subject to liability only for his own
contribution. He is not liable for that of others; but the
fact that the others are contributing is not a defense
to his own liability.” (Rest.2d Torts, § 840E, com. B,
italics added.) The trial court could have reasonably
concluded that defendants did not prove that the harm
was capable of apportionment. The Restatement
confirms that where the harm is not capable of
apportionment, each contributor is liable for the entire
harm. (Rest.2d Torts, § 840E, com. c.) In this case, it
is clear that the trial court properly concluded that the
harm was incapable of apportionment and therefore
held all three defendants jointly and severally liable
for the entire harm.
5.
Abatability, Imminent
Reduction of BLLs
Danger,
and
Defendants contend that plaintiff failed to prove
that defendants have the ability to abate lead in
private homes or that abatement can be achieved “at
a reasonable cost by reasonable means.”
This court rejected defendants’ “ability to abate”
contention in Santa Clara I. “‘[L]iability for nuisance
does not hinge on whether the defendant owns,
possesses or controls the property, nor on whether he
is in a position to abate the nuisance; the critical
question is whether the defendant created or assisted
in the creation of the nuisance.’” (Santa Clara I, supra,
App-78
137 Cal.App.4th at p. 306.) We decline to reconsider
this issue.49
Defendants’ “reasonable cost” contention is
premised on Mangini v. Aerojet-General Corp. (1996)
12 Cal.4th 1087 (Mangini II). The issue in Mangini II
concerned the statute of limitations. (Mangini II, at p.
1090.) Because the plaintiffs had not filed their
private nuisance action within the three-year
limitations period for a “permanent” nuisance, the
action was barred unless the nuisance was a
“continuing” one. (Ibid.) “‘[T]he crucial test of the
permanency of a trespass or nuisance is whether the
trespass or nuisance can be discontinued or abated.’”
(Mangini II, at p. 1097.) The California Supreme
Court held that the plaintiffs had failed to prove that
the nuisance was abatable. However, the court
expressly denied that its holding would be applicable
where the statute of limitations was not at issue: “We
express no opinion on the question whether a plaintiff
who has filed a timely nuisance action is required to
prove that abatement can be accomplished at a
‘reasonable cost’ in order to be entitled to an injunction
requiring the wrongdoing party to remedy the damage
to the property.” (Mangini II, at p. 1090.) Defendants
The Rhode Island and New Jersey cases upon which
defendants rely are not helpful as these cases did not apply
California law. (State v. Lead Industries Ass’n, Inc. (R.I. 2008)
951 A.2d 428; In re Lead Paint Litigation ([June 15,] 2007) 191
N.J. 405.) We discuss these out-of-state cases in section V of this
opinion.
49
App-79
choose to ignore this statement, but it establishes that
Mangini II provides no support for their claim.50
Defendants’ reliance on County of San Diego v.
Carlstrom (1961) 196 Cal.App.2d 485 (Carlstrom) is
also misplaced. Carlstrom was a case in which the
defendants claimed that the abatement injunction
should have offered them abatement options other
than removal of the structures that the court had
found to be a public nuisance. (Carlstrom, at p. 493.)
The Court of Appeal found that the trial court had not
abused its discretion in requiring removal. (Ibid.) We
can find nothing in Carlstrom to support defendants’
abatability or reasonable cost contentions.
Defendants assert that plaintiff failed to establish
that lead paint poses an imminent danger of harm and
that the abatement plan will reduce children’s BLLs.
Plaintiff responds that it presented substantial
evidence that lead paint poses an imminent risk of
harm and that abatement, and particularly door and
window replacement, will reduce the number of
children who are poisoned by lead paint.
Defendants rely on Helix Land Co. v. City of San
Diego (1978) 82 Cal.App.3d 932 (Helix) to support
their claim that plaintiff failed to prove that lead paint
poses an imminent danger of harm. The plaintiff in
Helix attempted to allege inverse condemnation and
nuisance causes of action based on its claim that its
land was at greater risk of harm due to the City’s
50 Beck Development Co. v. Southern Pacific Transportation Co.
(1996) 44 Cal.App.4th 1160 (Beck), like Mangini II, discussed
abatability solely in the context of whether a private nuisance
cause of action was barred by the statute of limitations. (Beck, at
pp. 1216, 1219-1223.)
App-80
actions and inactions regarding flood control. (Helix,
at pp. 940, 950.) However, the plaintiff failed to allege
that the City’s actions “present[] a future hazard” to
its land. (Helix, at p. 950.) The plaintiff did not allege
that any damage had occurred, and the court found
that it was mere speculation that damage might occur
in the future. (Ibid.) The court rejected the plaintiff’s
nuisance cause of action on the ground that it had
failed to allege that a “prospective nuisance” was
“either probable or imminent.” (Helix, at p. 951.)
Helix does not support defendants’ challenge to
the trial court’s abatement order. In this case, unlike
in Helix, there was substantial evidence that interior
residential lead paint had been causing and will
continue to cause harm to children in the 10
jurisdictions.51 “Almost all human activity involves
some risk, and in circumstances in which Civil Code
section 3479 is the only applicable statute,
considerable judicial discretion has been allowed in
determining whether an alleged danger is sufficiently
serious to justify abatement.” (City of Bakersfield v.
Miller (1966) 64 Cal.2d 93, 99 (Miller).) Every year,
numerous children in the 10 jurisdictions are found to
be suffering from lead poisoning due to their exposure
to lead paint. “[T]he lead will not disappear on its
own.” So long as interior residential lead paint
continues to exist in the 10 jurisdictions, this nuisance
will continue to be an ongoing and imminent risk to
the health of the children in the 10 jurisdictions. The
trial court did not abuse its discretion in determining
51 They also cite Beck, but in Beck, unlike this case, there was
“no evidence” of potential harm from the alleged public nuisance.
(Beck, supra, 44 Cal.App.4th at p. 1214.)
App-81
that the danger posed by interior residential lead
paint in the 10 jurisdictions poses a sufficiently
serious and imminent risk of harm to merit
abatement.
Defendants also contend that abatement is
unwarranted because plaintiff failed to show that
abatement will reduce the BLLs of children in the 10
jurisdictions. Plaintiff presented expert testimony
that abatement is effective at reducing BLLs in
children. Defendants concede that plaintiff presented
such evidence, but they maintain that this expert
opinion testimony was “inadmissible guesswork.”52
The trial court admitted this evidence, and defendants
make no effort to demonstrate that the court abused
its broad discretion in doing so. Their citation to
Sargon Enterprises, Inc. v. University of Southern
California (2012) 55 Cal.4th 747 (Sargon) is not
helpful to their contention. Sargon held that the trial
court has discretion as a “gatekeeper” to determine
“whether the matter relied on [by an expert] can
provide a reasonable basis for the opinion or whether
that opinion is based on a leap of logic or conjecture.”
Defendants repeatedly insist that the court ordered
abatement of “intact” lead paint. This insistence is misleading.
With the exception of doors and windows, intact lead paint on
large surfaces such as walls would not be removed. Instead, paint
stabilization techniques would be applied to ensure that it
remained intact. Lead-contaminated soil would be covered or
removed depending on its concentration. Windows and doors that
had been painted with lead paint would be replaced, as no other
remediation would be effective. Thus, the court did not order
abatement of all “intact” lead paint in the 10 jurisdictions. The
abatement plan targeted only the highest risks, while avoiding
the creation of additional risks of contamination that might
follow from the removal of all intact lead paint.
52
App-82
(Sargon, at pp. 771-772.) Defendants fail to establish
that the trial court abused its discretion in finding
that plaintiff’s expert’s opinion regarding BLL
reductions had a reasonable basis. Since the evidence
was properly admitted, the trial court was entitled to
credit it. The substance of defendants’ argument is
that the trial court should not have credited this
testimony, but an appellate court must defer to a trial
court’s credibility determinations. We reject this
contention.
B. Public Right
Defendants contend that plaintiff failed to
establish that interior residential lead paint interferes
with any “public right.”53
“‘Anything which is injurious to health . . . or is
indecent or offensive to the senses, or an obstruction
to the free use of property, so as to interfere with the
comfortable enjoyment of life or property . . . is a
nuisance.’ (Civ. Code, § 3479, italics added.) ‘A public
nuisance is one which affects at the same time an
entire community or neighborhood, or any
considerable number of persons, although the extent
of the annoyance or damage inflicted upon individuals
may be unequal.’ (Civ. Code, § 3480[, italics
added].) . . . [¶] ‘[P]ublic nuisances are offenses
against, or interferences with, the exercise of rights
common to the public.’ (People ex rel. Gallo v. Acuna
53 They also claim that, “if this were a factual question, not a
legal one,” we would be precluded from inferring a trial court
finding on it because the trial court failed to identify any “public
right” in its statement of decision even though it was pointed out
to the court in objections. However, they concede that this is a
legal issue, and we agree.
App-83
(1997) 14 Cal.4th 1090, 1103 [60 Cal.Rptr.2d 277, 929
P.2d 596], [first italics added, second italics are]
original italics.) ‘Of course, not every interference with
collective social interests constitutes a public
nuisance. To qualify, and thus be enjoinable [or
abatable], the interference must be both substantial
and unreasonable.’ ([Id. at p. 1105].) It is substantial
if it causes significant harm and unreasonable if its
social utility is outweighed by the gravity of the harm
inflicted. ([Ibid].)” (Santa Clara I, supra, 137
Cal.App.4th at p. 305.)
Defendants concede that a “public right is one
relating to common resources,” but they contend that
interior residential lead paint does not interfere with
any “public right” because it causes only private
harms in private residences. They claim that the trial
court erroneously based its public nuisance finding on
an “aggregation of private harms.” Defendants
contend that a public nuisance can exist only if it
“harm[s] people in their exercise of a public right.”
(Italics added.)
Interior residential lead paint that is in a
dangerous condition does not merely pose a risk of
private harm in private residences. The community
has a collective social interest in the safety of children
in residential housing. Interior residential lead paint
interferes with the community’s “public right” to
housing that does not poison children. This
interference seriously threatens to cause grave harm
to the physical health of the community’s children.
Defendants cite no California authority for their claim
that no public right is threatened by interior
residential lead paint, and we reject their reliance on
App-84
Rhode Island and Illinois cases applying those states’
laws, which they seem to concede are not as broad as
California’s.
Defendants argue that “[t]he ‘public’ has no right
to be present inside a private home, and thus, any
possible lead exposure inside a private home cannot
occur in the exercise of any public right.” Most
members of the “public” reside in residential housing,
and we do not accept defendants’ claim that, unlike
streets, residential housing is not a shared community
resource. Residential housing, like water, electricity,
natural gas, and sewer services, is an essential
community resource. Indeed, without residential
housing, it would be nearly impossible for the “public”
to obtain access to water, electricity, gas, and sewer
services. Pervasive lead exposure in residential
housing threatens the public right to essential
community resources. We reject defendants’
contention that interior residential lead paint cannot
interfere with a public right.
C. Regulatory Standards, Nuisance Per Se, and
Separation of Powers
Defendants claim that interior residential lead
paint cannot be a public nuisance because it does not
violate any regulatory standards, and “[t]he court
must follow state regulations declaring intact LBP
[lead-based paint] not a hazard, even on friction
surfaces. (H&S Code § 17920.10.)”
“Nothing which is done or maintained under the
express authority of a statute can be deemed a
nuisance.” (Civ. Code, § 3482.) Health and Safety Code
section 17920.10 does not “declar[e]” that “intact” lead
paint is “not a hazard.” This statute provides that
App-85
buildings that contain “lead hazards,” as it defines
them “for the purposes of this part” (primarily
deteriorated lead paint), are in violation of the Health
and Safety Code.54 (Health & Saf. Code, § 17920.10,
54 Health and Safety Code section 17920.10 provides: “(a) Any
building or portion thereof including any dwelling unit,
guestroom, or suite of rooms, or portion thereof, or the premises
on which it is located, is deemed to be in violation of this part as
to any portion that contains lead hazards. For purposes of this
part, ‘lead hazards’ means deteriorated lead-based paint, leadcontaminated dust, lead-contaminated soil, or disturbing leadbased paint without containment, if one or more of these hazards
are present in one or more locations in amounts that are equal to
or exceed the amounts of lead established for these terms in
Chapter 8 (commencing with Section 35001) of Division 1 of Title
17 of the California Code of Regulations or by this section and
that are likely to endanger the health of the public or the
occupants thereof as a result of their proximity to the public or
the occupants thereof. [¶] (b) In the absence of new regulations
adopted by the State Department of Health Services in
accordance with the rulemaking provisions of the Administrative
Procedure Act (Chapter 3.5 (commencing with Section 11340) of
Part 1 of Division 3 of Title 2 of the Government Code) further
interpreting or clarifying the terms ‘deteriorated lead-based
paint,’
‘lead-based
paint,’
‘lead-contaminated
dust,’
‘containment,’ or ‘lead-contaminated soil,’ regulations in Chapter
8 (commencing with Section 35001) of Division 1 of Title 17 of the
California Code of Regulations adopted by the State Department
of Health Services pursuant to Sections 105250 and 124150 shall
interpret or clarify these terms. If the State Department of
Health Services adopts new regulations defining these terms, the
new regulations shall supersede the prior regulations for the
purposes of this part. [¶] (c) In the absence of new regulations
adopted by the State Department of Health Services in
accordance with the rulemaking provisions of the Administrative
Procedure Act defining the term ‘disturbing lead-based paint
without containment’ or modifying the term ‘deteriorated leadbased paint,’ for purposes of this part ‘disturbing lead-based
paint without containment’ and ‘deteriorated lead-based paint’
App-86
subd. (a).) Nowhere in this statute does the
Legislature declare that any other type of lead paint
in buildings is not a hazard, is lawful, or is authorized
by statute. All that this statute does is identify certain
defined “lead hazards” as violations of the Health and
Safety Code. The mere fact that not all interior
residential lead paint violates the Health and Safety
Code does not mean that it cannot be abated as a
public nuisance. “‘A statutory sanction cannot be
pleaded in justification of acts which by the general
rules of law constitute a nuisance, unless the acts
complained of are authorized by the express terms of
the statute under which the justification is made, or
by the plainest and most necessary implication from
shall be considered lead hazards as described in subdivision (a)
only if the aggregate affected area is equal to or in excess of one
of the following: [¶] (1) Two square feet in any one interior room
or space. [¶] (2) Twenty square feet on exterior surfaces. [¶]
(3) Ten percent of the surface area on the interior or exterior type
of component with a small surface area. Examples include
window sills, baseboards, and trim. [¶] (d) Notwithstanding
subdivision (c), ‘disturbing lead-based paint without
containment’ and ‘deteriorated lead-based paint’ shall be
considered lead hazards, for purposes of this part, if it is
determined that an area smaller than those specified in
subdivision (c) is associated with a person with a blood lead level
equal to or greater than 10 micrograms per deciliter. [¶] (e) If the
State Department of Health Services adopts regulations defining
or redefining the terms ‘deteriorated lead-based paint,’ ‘leadcontaminated dust,’ ‘lead-contaminated soil,’ ‘disturbing leadbased paint without containment,’ ‘containment,’ or ‘lead-based
paint,’ the effective date of the new regulations shall be deferred
for a minimum of three months after their approval by the Office
of Administrative Law and the regulations shall take effect on
the next July 1 or January 1 following that three-month period.
Until the new definitions apply, the prior definition shall apply.”
App-87
the powers expressly conferred, so that it can be fairly
stated that the legislature contemplated the doing of
the very act which occasions the injury.’” (Hassell v.
City and County of San Francisco (1938) 11 Cal.2d
168, 171.)
Nor does the absence of a regulation or statute
declaring interior residential lead paint to be unlawful
bar a court from declaring it to be a public nuisance.
“The fact that a building was constructed in
accordance with all existing statutes does not
immunize it from subsequent abatement as a public
nuisance. . . . It would be an unreasonable limitation
on the powers of the city to require that this [presently
existing] danger be tolerated ad infinitum merely
because the [building] did not violate the statutes in
effect when it was constructed 36 years ago.” (Miller,
supra, 64 Cal.2d at pp. 101-102.)
Defendants contend: “[T]he trial court declared
lead paint to be a nuisance by category. This inverts
the role of the two branches of government, because
only the Legislature has the power to choose between
declaring a nuisance per se and finding a nuisance in
specific circumstances.” The trial court did no such
thing. “Generally a nuisance is defined as ‘[a]nything
which is injurious to health, or is indecent or offensive
to the senses, or an obstruction to the free use of
property, so as to interfere with the comfortable
enjoyment of life or property . . . .’ (Civ. Code, § 3479.)
This requires consideration and balancing of a variety
of factors. [Citations.] However, where the law
expressly declares something to be a nuisance, then no
inquiry beyond its existence need be made and in this
sense its mere existence is said to be a nuisance per
App-88
se. [Citation.] But, to rephrase the rule, to be
considered a nuisance per se the object, substance,
activity or circumstance at issue must be expressly
declared to be a nuisance by its very existence by some
applicable law.” (Beck, supra, 44 Cal.App.4th at pp.
1206-1207.)
The trial court did not declare the “very existence”
of lead paint or even interior residential lead paint to
be a public nuisance. The court crafted a very limited
order requiring abatement of only deteriorated
interior lead paint, lead paint on friction surfaces, and
lead-contaminated soil at residences in the 10
jurisdictions. It did not find that lead paint itself is a
nuisance per se but only that the specific targets of its
order produce or contain lead that has been shown to
threaten the safety of children in their homes. It is
only under these limited circumstances that lead paint
poses an immediate threat to the health of children
and must be abated as a public nuisance. The court’s
order was well within the general authority of Civil
Code section 3479, so its order was not a declaration
of a nuisance per se.
Defendants argue that the trial court’s order
violated separation of powers principles because the
Legislature chose in 2001 not to declare the presence
of lead paint in a residence to be a nuisance. They
assert that the Legislature rejected a 2001 bill that
would have declared the presence of lead paint in a
residence to be a public nuisance and instead enacted
a statute that “permits owners to maintain intact LBP
in residences.” Defendants misrepresent the nature of
the Legislature’s 2001 actions. The unpassed bill,
Assembly Bill No. 422 (2001-2002 Reg. Sess.) would
App-89
have enacted a statute providing that “[a]ny condition
on real property that a local health department has
determined poses a lead hazard risk to public children
is a public nuisance for purposes of Section 3479 of the
Civil Code.” (Assem. Bill No. 422 (2001-2002 Reg.
Sess.) as introduced and amended Feb. 20, 2001.) This
bill was not limited to residences, did not address
“intact” lead paint, and did not propose to declare
anything to be a public nuisance absent a
determination by a local agency. The enacted bill,
Senate Bill No. 460, was directed toward lead hazard
abatement. It enacted Health and Safety Code section
17920.10, providing that a “dwelling” would be
“deemed untenantable” if it “contains lead hazards” as
defined (primarily deteriorated lead paint). Senate
Bill No. 460 also enacted Health and Safety Code
section 17980, which mandated that an “enforcement
agency” that “determined” a building contained “lead
hazards” “shall commence proceedings to abate the
violation by repair, rehabilitation, vacation, or
demolition of the building.” (Health & Saf. Code,
§ 17980, subd. (b)(1).) And it provided for criminal
charges against a person who did not comply with such
an abatement order. (Health & Saf. Code, § 105256.)
First of all, “[u]npassed bills, as evidences of
legislative intent, have little value.” (Dyna-Med, Inc.
v. Fair Employment & Housing Com. (1987) 43 Cal.3d
1379, 1396.) Furthermore, the Legislature’s 2001
actions cannot reasonably be viewed as rejecting the
possibility that conditions created by lead paint in the
interiors of residences that posed an imminent danger
to children could constitute public nuisances. By
authorizing abatement actions for lead hazards and
criminal charges against those who did not comply
App-90
with abatement orders, the Legislature took a strong
stance against lead hazards in dwellings by enacting
Senate Bill No. 460. Assembly Bill No. 422, unlike
Senate Bill No. 460 and the trial court’s order, was not
limited to dwellings and gave local health
departments the power to declare “real property” to be
a public nuisance. The Legislature’s rejection of
Assembly Bill No. 422 was therefore not a rejection of
the potential for a court to conclude that certain
conditions created by lead paint in the interiors of
residences and posing an imminent danger to children
were public nuisances.
Defendants also submit an extended argument
that the trial court’s order has adverse policy
implications. We are not persuaded that these
arguments could support a reversal of the trial court’s
abatement order. It may well be that a multi-pronged
approach to this problem will be necessary, with the
court’s abatement order serving as merely one of
several methods necessary to resolve this problem.
What the evidence in this case demonstrates is that
defendants are wrong in claiming that California’s
statutory scheme creating the CLPPB and local
CLPPPs fully addresses childhood lead exposure.
The CLPPB’s $28 million annual budget is largely
funded by a special fee called the Childhood Lead
Poisoning Prevention fee, and also by Medi-Cal, the
EPA, the CDC, and a special fund for lead-related
construction. The Childhood Lead Poisoning
Prevention fee, which provides about $20 million a
year, is funded by the industries that put lead into the
environment. About 14 percent of those fees are paid
by makers and former makers of “architectural
App-91
coatings.”55 The vast majority of the fees are paid by
motor vehicle fuel distributors.56 Even with the
CLPPB, local CLPPPs, and state statutes addressing
lead hazards, many children in the 10 jurisdictions
continue to suffer serious harm from lead paint in
their homes.
The evidence presented at trial demonstrated
that the trial court’s abatement order will reduce the
risk of further harm to children in the 10 jurisdictions
from lead paint. The Legislature has not precluded
courts from utilizing public nuisance law to prevent
further harm, and we are aware of no public policy
reason to preclude courts from taking such actions.
Lead poisoning has been estimated to cost society $50
billion a year. For every dollar that is spent on
preventing lead exposure, there is a savings to society
of between $17 and $220. We reject defendants’ claims
that the court’s abatement order usurps the
Legislature’s powers.
55 “‘Architectural coating’ means any product which is used as,
or usable as, a coating applied to the interior or exterior surfaces
of stationary structures and their appurtenances, to portable
buildings, to pavements, or to curbs, such as house and trim
paints, varnishes, stains, lacquers, industrial maintenance
coatings, primers, undercoaters, and traffic coatings.” (Cal. Code
Regs., tit. 17, § 33002.)
56 Motor vehicle fuel contained lead from the 1920s until it
began to be phased out in the 1970s and 1980s. It was not
eliminated until the 1990s. The percentages were not based on
distribution of lead into the environment by the products but on
the amount of lead used in the products.
App-92
D. Joint and Several Liability
Defendants contend that the trial court erred in imposing
joint and several liability. They claim that this resulted in
a “disproportionate, unfair burden” being placed on each
of them when many people were involved in the creation
of the nuisance.
The trial court expressly found that “[d]efendants
offered no evidence that an abatement remedy can be
apportioned” and that the remedy was indivisible.
While liability often may be capable of apportionment
in a public nuisance case, “[t]here are other cases in
which the harm resulting from a nuisance is not
capable of apportionment to the several contributors
upon any reasonable or rational basis.” (Rest.2d.
Torts, § 840E, com. c.) Each defendant bore the burden
of producing evidence upon which an apportionment
could be made. (Rest.2d Torts, § 840E, com. b.) “Unless
sufficient evidence permits the factfinder to determine
that damages are divisible, they are indivisible.”
(Rest.3d Torts: Apportionment of Liability, § 26, com.
g.) When a court determines that apportionment
cannot be accomplished, each defendant who
contributed is liable for the entire harm. (Rest.2d
Torts, § 840E, com. c.)
“Where several persons act in concert and
damages result from their joint tort, each person is
held for the entire damages unless segregation as to
causation can be established. Even though persons are
not acting in concert, if the result produced by their
acts are [sic] indivisible, each person is held liable for
the whole. . . . The reason for imposing liability on
each for the entire consequence is that there exists no
basis for dividing damages and the law is loath to
App-93
permit an innocent plaintiff to suffer as against a
wrongdoing defendant. This liability is imposed where
each cause is sufficient in itself as well as where each
cause is required to produce the result. [¶] . . . [T]he
same reason[s] of policy and justice shift the burden to
each of defendants to absolve himself if he can—
relieving the wronged person of the duty of
apportioning the injury to a particular defendant,
apply here where we are concerned with whether
plaintiff is required to supply evidence for the
apportionment of damages. If defendants are
independent tort feasors and thus each liable for the
damage caused by him alone, and, at least, where the
matter of apportionment is incapable of proof, the
innocent wronged party should not be deprived of his
right to redress. The wrongdoers should be left to work
out between themselves an apportionment.”
(Finnegan v. Royal Realty Co. (1950) 35 Cal.2d 409,
433-434.)
“[T]he mere fact that it may be possible to assign
some percentage figure to the relative culpability of
one negligent defendant as compared to another does
not in any way suggest that each defendant’s
negligence is not a proximate cause of the entire
indivisible injury.” (American Motorcycle Assn. v.
Superior Court (1978) 20 Cal.3d 578, 588-589 [citing
Finnegan].) “Principles of equitable indemnity would
enable these defendants to sort out their respective
liabilities. It does not affect the right of a plaintiff to
recover the entire judgment from any one of them.”
(Sanchez v. Bay General Hospital (1981) 116
Cal.App.3d 776, 796-797.)
App-94
The trial court determined that defendants had
failed to establish that the public nuisance was
divisible, and we review this factual finding for
substantial evidence. Only SWC argues that it
presented evidence supporting an apportionment.
SWC asserts that it was responsible for only a tiny
percentage of “the total lead used in California from
1894 to 2009,” that it paid its share of the CLPP fee,
and that “thousands of persons contributed” to the
presence of lead paint inside residences. The trial
court could reasonably conclude that SWC’s evidence
did not support an apportionment of liability for the
public nuisance created by the promotion of lead paint
for interior residential use by defendants. The
evidence presented at trial did not establish that an
entity’s share of the total amount of lead used in
California bore any relationship to that entity’s
liability for the amount of lead paint present in
residences in the 10 jurisdictions. The evidence
presented at trial indicated that nonresidential uses
of lead have been the historically predominant ones.
The Legislature’s establishment of the CLPP fee was
not intended to limit liability for promotion of lead
paint for interior residential use, as that fee was not
premised on such conduct but merely on total lead
contribution. Finally, SWC did not establish that the
“thousands of persons” who were also involved in the
use of lead paint inside
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