Environmental Justice Foundation The Gary`s Companies,

Transcription

© Prop 65 News. All Rights Reserved.
PROP65
News-38028
Mateel
Environmental
Justice
Foundation
VB
The Gary's
Companies,
Inc.
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WILLIAM VERICK CSB#140972
KLAMATH ENVIRONMENTAL LAW CENTER
424 First Street
Eureka, California 95501
(707) 268-8900
PROP65
s
Attorneys for Plaintiff
MATEEL ENVIRONMENTAL JUSTICE FOUNDATION
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9:00 A.M.
PLAN I
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~'rA~s ~ r ~ N ~ , [ 1"]~; SEp Z 9 200_00
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SAN FRANCISCO (UNLIMITED JURISDICTION)
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News-38029
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MATEEL ENVIRONMENTAL JUSTICE
FOUNDATION,
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Plaintiff,
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VS.
COMPLAINT FOR CIVIL PENALTIES
AND INJUNCTIVE RELIEF
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THE GARY'S COMPANIES, INC.; THE
GARY'S GROUP, LLC; THE BRILL
PARTNERSHIP; AND GARY S. AND
SERA BRILL, and DOES 1 through 50
inclusive,
TOXIC TORT/ENVIRONMENTAL
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Defendants.
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Mateel Environmental Justice Foundation alleges as follows:
INTRODUCTION
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1.
This Complaint seeks civil penalties and an injunction to remedy the continuing
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failure of defendants THE GARY'S COMPANIES, INC.; THE GARY'S GROUP, LLC; THE
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BRILL PARTNERSHIP; AND GARY S. AND SERA BRILL, and DOES 1 through 50
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inclusive (Collectively hereinat~er "GARY'S" or "defendants"), to give clear and reasonable
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warnings to those residents of California, who wear, use, handle, or work with dry cleaned fabric
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that wearing, using handling, or working with dry cleaned fabric causes these residents to be
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exposed to perchloroethylene and its breakdown products, namely vinyl chloride, and carbon
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COMPLAINT FOR CIVIL
PENALTIES AND INJUNCTION
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tetrachloride, (hereinafter, collectively, "perc"). Perc is known to cause cancer. Defendants dry
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clean and rent dry cleaned fabric. Dry cleaned fabric cause exposures to perc, which is a
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chemical known to the State of California to cause cancer.
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2.
Defendants are all businesses that dry clean, and/or distribute dry cleaned fabric or
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own facilities at which fabric is dry cleaned and then distributed. Defendants intend that
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residents of California wear, use, handle, or work with dry cleaned fabric defendants dry clean
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and/or distribute. When these products are used in their normally intended manner, they expose
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people to perc. In spite of knowing that residents of California were being exposed to these
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chemicals when they wear, use, handle, or work with dry cleaned fabric, defendants did not
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provide clear and reasonable warning that these products cause exposure to chemicals known to
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cause cancer.
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3.
Plaintiff seeks injunctive relief pursuant to Health & Safety Code Section 25249.7
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to compel defendants to bring their business practices into compliance with section 25249.6 by
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providing a clear and reasonable warning to each individual who in the future may be exposed to
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the above mentioned toxic chemicals. Plaintiff also seeks injunctive relief pursuant to Business
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& Professions Code Sections 17203 and 17204, which grant the Court the authority to enjoin any
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unlawful business practice constituting an act of unfair competition.
PARTIES
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4.
PlaintiffMATEEL ENVIRONMENTAL JUSTICE FOUNDATION is a non-
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profit corporation concerned with enforcement of California and federal environmental law and a
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"person" pursuant to Health & Safety Code Section 25118.
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5.
Defendants are all businesses that market dry cleaned fabric in California,
including in the City and County of San Francisco.
6.
Plaintiff is ignorant of the true names or capacities of the defendants sued herein
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under the fictitious names DOES 1 through 50, inclusive. Defendants DOES 1 through 50
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inclusive are therefore sued herein pursuant to Cal. Code Civ. Proc. w
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COMPLAINTFOR CIVIL
PENALTIESAND INJUNCTION
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Plaintiff brings this enforcement action against defendants pursuant to Health &
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Safety Code Section 25249.7(d). Attached hereto and incorporated by reference is a copy of a
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60-day Notice letter, dated September 3, 1997, which plaintiff sent to California's Attorney
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General. Substantially similar letters were sent to every District Attorney in the state and to the
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City Attorneys of every California city with a population greater than 750,000. On the same
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date, plaintiff sent similar 60-Day Notice letters to each defendant.
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Defendants are all businesses that employ more than ten people.
IJ.IRISD2C_TXDN
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The Court has jurisdiction over this action pursuant to California Health & Safety
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Code Section 25249.7, and Business & Professions Code Sections 17203 and 17204, which
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allow enforcement in any court of competent jurisdiction. California Constitution Article VI,
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Section 10 grantsthe Superior Court "original jurisdiction in all causes except those given by
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statute to other trial courts." Chapter 6.6 of the Health & Safety Code, and Division 7, part 2
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(Sections 17200 et seq.) of the Business & Professions Code, which contain the statutes under
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which this action is brought, do not grant jurisdiction to any other trial court.
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10.
This Court also has jurisdiction over the defendants because they are businesses
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that have sufficient minimum contacts in California and within the City and County of San
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Francisco. Defendants intentionally availed themselves of the California and San Francisco
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markets for dry cleaned fabric. It is thus consistent with traditional notions of fair play and
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substantial justice for the San Francisco Superior Court to exercise jurisdiction over them.
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11.
Venue is proper in this Court because acts of which plaintiff complains occurred
within the City and County of San Francisco during the times relevant to this Complaint.
FIRST CLAIM FOR RELIEF
(Violation of Proposition 65)
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12.
Plaintiff realleges and incorporates by reference into this First Claim for Relief, as
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if specifically set forth herein, paragraphs 1 through 11, inclusive.
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COMPLAINTFOR CIVIL
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13.
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The People of the State of California have declared by referendum under
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Proposition 65 (California Health & Safety Code w25249.5 et seq.) their fight "[t]o be informed
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about exposures to chemicals that cause cancer."
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14.
To effectuate this goal, Section 25249.6 of the Health and Safety Code mandates
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that persons who, in the course of doing business, knowingly and intentionally expose any
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individual to a chemical known to the State of California to cause cancer or birth defects must
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provide a clear and reasonable warning to such individual prior to the exposure.
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15.
Since before September 3, 1993 and the date of the filing of this Complaint,
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defendants have engaged in conduct which violates Health and Safety Code Section 25249.6 et
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sea. This conduct includes knowingly and intentionally exposing to the above mentioned toxic
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chemicals, California residents who wear, use, handle, or work with dry cleaned fabric. The
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normally intended wearing, handling, use of, or working with dry cleaned fabric causes exposure
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to perc, which is a chemical known to the State of California to cause cancer. Defendants have
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not provided clear and reasonable warnings within the meaning of Health & Safety Code
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Sections 25249.6 and 25249.11.
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16.
At all times relevant to this action, defendants knew that the dry cleaned fabric
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they dry cleaned and/or distributed was causing exposures to perc. Defendants intended that
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residents of California wear, use, handle, or work with dry cleaned fabric in such ways as would
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lead to significant exposures to these chemicals.
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17.
By the above described acts, defendants GARY'S, and DOES 1 through 50
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inclusive, are liable and should be liable, pursuant to Health & Safety Code w25249.7(b), for a
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civil penalty of $2,500.00 per day for each individual exposed to perc.
SECOND CLAIM FOR RELIEF
(Violation of Business & Professions Code w167
17200 et seq.)
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18.
Plaintiff realleges and incorporates by reference into this Second Claim for Relief,
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as if specifically set forth herein, paragraphs 1 through 17.
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19.
Defendants, at all times relevant to this action, have knowingly and intentionally
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exposed to perc those residents of California who wear, use, handle, or work with dry cleaned
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COMPLAINTFOR CML
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fabric. Defendants have not provided clear and reasonable warnings within the meaning of
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Health & Safety Code Section 25249.6 and 25249.11 to these exposed individuals.
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20.
By intentionally causing such exposures without first providing clear and
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reasonable warnings, defendants have violated Proposition 65, Section 25249.6 of the California
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Health & Safety Code. These violations thus constitute unlawful business practices as defined
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by Business & Professions Code Section 17200.
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21.
An action for injunctive relief under the Unfair Business & Professions Act is
specifically authorized herein pursuant to Business & Professions Code w 17203.
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Plaintiff, in bringing this action, acts within the public interest for the protection
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of all citizens of the State of California in attempting to obtain injunctive relief for the purpose of
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deterring and preventing defendants from failing to warn about possible future exposures to the
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above mentioned carcinogenic substances.
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PRAYER FOR RELIEF
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Wherefore, plaintiff prays for judgment against defendants GARY'S, and DOES 1
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through 50 inclusive as follows:
1.
Pursuant to the First Claim for Relief, that defendants GARY'S, and DOES 1
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through 50 inclusive, be assessed a civil penalty in an amount equal to $2,500.00 per day per
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individual exposed, in violation of Section 25249.6 of the California Health & Safety Code, to
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perc as the result of defendants' dry cleaning of and/or distribution of dry cleaned fabric;
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2.
That pursuant to the Second Claim for Relief, all defendants be enjoined,
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restrained, and ordered to comply with the provisions of Section 25249.5, et seo. of the
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California Health & Safety Code, and not commit any further unlawful or unfair business
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practices;
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3.
That pursuant to the Second Claim for Relief, all defendants be assessed
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reasonable attorney's fees according to the usual hourly rate of plaintiff's counsel herein, and for
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costs of suit actually incurred by plaintiff for the preparation and pursuit of this action, and
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COMPLAINTFOR CIVIL
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4.
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For such other relief as this Court deems just and proper.
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KLAMATH ENVIRONMENTAL
LAW
CENTER
Dated: April 20, 2000
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WILLIAM VERICK
Attomey for Plaintiff
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COMPLAINT FOR CIVIL
PENALTIES AND INJUNCTION
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- ATTORNEYS
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Pacific Justice
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C E N T E R
Melvin B. Pearlston
News-38035
OF C O U N S E L
Sharon E. Duggan
Mark S. Pollock
Hannah L. Nelson
September 3, 1997
William Verick
Loren E. Weiss
BY CERTIFIED MAIL
CRAIG THOMPSON
SUPERVISING DEPUTY ATTORNEY GENERAL
STATE OF CALIFORNIA
i 300 'T' STREET
P.O. BOX 94255
SACRAMENTO CA 95814
Greetings:
This office and the Mateel Environmental Justice Foundation ("Mateel") hereby give you notice
that those companies listed on the attached Exhibit A are in violation of Cal. Health & Safety Code
w 25249.6, otherwise known as Proposition 65. This office and Mateei are both private enforcers of
Proposition965, both organizations may be contacted at the below listed address and telephone number. I
may be considered a "responsible individual" within both noticing entities and I may be contacted at the
same address and telephone number.
The above-mentioned violations have occurred, occurs, and will occur when residents of the
State wear or are in close proximity to tuxedos that have been dry cleaned by a process which uses
tetrachloroethylene as a solvent. Residual amounts of tetrachloroethylene remain on dry cleaned
clothing. Carbon tetrachloride and vinyl chloride are produced when tetrachioroethylene breaks down.
When tuxedos that have been dry cleaned are transported, worn, and/or brought into the home, the
residual"off-gasses and exposes people to significant amounts of tetrachloroethylene and its breakdown
chemicals, carbon tetrachloride and vinyl chloride. Residents of California are exposed when they enter
tuxedo shops, and when they transport, touch, wear, use, or store tuxedos that off-gas tetraehloroethylene
and carbon tetrachloride and vinyl chloride. Residents of California who live and/or work in close
proximity to dry cleaning establishments and tuxed.o"shops are exposed to significant amounts of
tetrachloroethylene and its break down chemicals which emit from those establishments. In addition,
employees of tuxedo establishments are exposed to significant amounts of these chemicals when they
touch, clean, store, transport, or work in close proximity to tuxedos that have been dry cleaned. The
above referenced violations occur and have occurred when people breath the chemicals that off-gas from
dry cleaned tuxedos, or when they make dermal contact with these chemicals. These exposures thus
occur via the inhalation, ingestion, and dermal routes.
None of the above referenced businesses have provided people with clear and reasonable
warning that they are being exposed to chemicals that cause cancer, birth defects, and other reproductive
harm. These violations have occurred every day since at least September 3, 1993. These violations will
continue to occur, every day until clear and reasonable warnings are given.
Cordially,~
~~.,.,...~_,.,..~
Melvin B. Pearlston
Enclosures
530 Briceland Road, Post Office Box 2090, Redway, California 95560
Phone: (707)923-4001 ~ Fax: (707/923-4006
-
EXHIBIT A
Arthur C. Martinez, Chairman and CEO
SEARS, ROEBUCK & CO.
3333 Beverly Road
Hoffman Estates, Illinois 60179
Michael K. Meskell, CEO
FRIAR TUX SHOP
1932 Park Skyline Drive
Santa Ana, CA 92705
Gary S. Brill, CEO
THE GARY'S COMPANIES
6711 Odessa Avenue
Van Nuys, CA 91406
Michael Sbrocca, CEO
PRESIDENT TUXEDO, INC.
32185 Hollingworth
Warren, MI 48092
\
John D. Maness, CEO
DICK BRUHN, INC.
300 Main Street
Salinas, CA 93901
Timothy S. Benbrook, CEO
TUXEDO DEN, INC.
1580 Charles Drive
Reddiag, CA 96003
Robt. C. Benbrook CEO
BLACK TIE FORMAL WEAR, INC.
2685 Bechelli
ReAding, CA 96002
Michael J. Corrao, CEO
GINGISS INTERNATIONAL, INC.
2101 Executive Drive
Addison, IL 60101-1482
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William Verick (State Bar No. 140972)
KLAMATH ENVIRONMENTAL LAW CENTER
424 First Street
Eureka, CA 95501
Attomeys for Plaintiff
MATEEL ENVIRONMENTAL
JUSTICE FOUNDATION
News-38038
FILED
San Francisco County Superior Court
~Au 1 0 2000
ALANCAR~..S~,CI~.
DY:
/uty
Clerk
ORI61N4L
SUPERIOR COURT OF THE STATE OF CALIFORNIA
FOR THE COUNTY OF SAN FRANCISCO
I
MicRoR'',',--0
REI~L,/'
3I~CHF',
t 327-37
MATEEL ENVIRONMENTAL JUSTICE
FOUNDATION,
Plaintiff,
V.
PARTNERSHIP; AND GARY S. AND
SERA BRILL,
Defendants.
1.
)
)
)
)
)
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)
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[~
CASE NO. 311658
cou~ c!T~_.
b.-
CONSENT JUDGMENT
INTRODUCTION
1.0
On April 24, 2000, Plaintiff MATEEL ENVIRONMENTAL JUSTICE
FOUNDATION CMateel"), acting on its own behalf and on behalf of the general public, filed a
Complaint for Civil Penalties and Injunctive Relief (the "Complaint") in San Francisco County
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Superior Court, Case No. 311658 (the "Action"), against The Gary's Companies, Inc.; The Gary's
Group, LLC; The Brill Partnership; and Gary S. and Sera Brill (collectively, "Gary's"). The Complaint
alleged that Gary's violated provisions of the Safe Drinking Water and Toxic Enforcement Act of
1986, Health and Safety Code sections 25249.5, et seq. ("Proposition 65"), and Business and
Professions Code section 17000 et seq. (the "B&P Code"), by allegedly knowingly exposing persons to
certain chemicals known to the State of California to cause cancer, birth defects or other reproductive
harm, purportedly without first providing a clear and reasonable warning to such individuals. Mateel
enters into this Consent Judgment both individually and, as to those matters described in the August
27, 1997 and September 3, 1997 60-day notice letters that Mateel sent to The Gary's Companies, Inc.
(collectively, the "Notice Letters") and in the Complaint, and only as to those matters, as representative
of the general public acting in the public interest. Gary's corporate parents, subsidiaries, predecessors,
successors, assigns, partners, agents, affiliates and licensees, and any of its or their officers, directors,
agents, employees, shareholders, partners, insurers and attorneys, shall collectively be referred to in
this Consent Judgment as the "Related Entities."
1.1
The Gary's Group, LLC is a business that employs more than ten persons. The Gary's
Group, LLC is engaged in the business of dry cleaning formal wear, some of which is dry cleaned by a
process using tetrachloroethylene (also known as perchloroethylene) (the "Formal Wear Business").
The Gary's Companies, Inc. is a business that formerly employed more than ten persons and was
engaged in the business of dry cleaning formal wear using tetrachloroethylene in its Formal Wear
Business. Mateel contends that tetrachloroethylene breaks down into carbon tetrachloride and vinyl
chloride, chemicals which the State of California placed on its list of chemicals "known to cause
cancer" pursuant to Health and Safety Code section 25249.9, which may be subject to the Proposition
65 warning requirement. The Brill Partnership and Gary S. and Sera Brill are the owners of the
property located at 6711 Odessa Avenue, Van Nuys, California, at which dry cleaning operations for
the Formal Wear Business were conducted.
1.2
For purposes of this Consent Judgment, the parties stipulate that this Court has
jurisdiction over the allegations of violations contained in the Complaint and personal jurisdiction over
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Gary's as to the acts and omissions alleged in the Complaint, that venue is proper in the County of San
Francisco and that this Court has jurisdiction to enter this Consent Judgment as a full and final
settlement, resolution and adjudication of all claims which were or could have been made based on the
facts alleged in the Complaint or arising therefrom.
1.25
The subject matter of this Consent Judgment is alleged exposures to hazardous
substances that purportedly result or resulted from the dry cleaning of fabrics, including but not limitec
to the matters alleged in the Complaint and the Notice Letters.
1.3
The parties enter into this Consent Judgment pursuant to a full and final settlement of
disputed claims between the parties for the purpose of avoiding prolonged litigation. This Consent
Judgment shall not constitute an admission with respect to any material allegation of the Complaint or
the Notice Letters, each and every allegation of which Gary's denies, nor may the Consent Judgment o~
compliance with the Consent Judgment be used as evidence of any wrongdoing, misconduct,
culpability or liability on the part of Gary's or the Related Entities. Moreover, Gary's disputes and
denies that it has violated Proposition 65 or the B&P Code in any respect and generally denies each
and every allegation in the Complaint.
2.
ENTRY OF CONSENT JUDGMENT
2.0
The parties hereby request that the Court promptly enter this Consent Judgment. Upon
entry of the Consent Judgment, Gary's and Mateel waive their respective rights to a hearing or trial on
the allegations of the Complaint.
3.
INJUNCTIVE
RELIEF
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CLEAR AND REASONABLE WARNINGS
3.0
Signs.
3.1
The Formal Wear Business.
a.
Dry Cleaning Facilities
With respect to dry cleaning facilities owned or operated by Gary's in connection with
Gary's Formal Wear Business within this State, no later than June 1, 2000, Gary's shall use its best
efforts to (a) cause a sign to be posted at any such facility located in California containing dry cleaning
machinery that currently uses tetrachloroethylene in connection with Gary's Formal Wear Business;
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and (b) cause such sign to be posted at or near the entrance to each such dry cleaning facility, in a
conspicuous place and under conditions that make it reasonably likely to be read and understood by
employees prior to any exposure to tetrachloroethylene at the facility.
b.
Dry_ Cleaning Delivery Vehicles
With respect to dry cleaning delivery vehicles owned or operated by Gary's and used in
connection with Gary's Formal Wear Business within this State, no later than June 1, 2000, Gary's
shall use its best efforts to (a) cause a sign to be posted within the interior of any and all such vehicles
located in California used in connection with Gary's Formal Wear Business for the purpose of
delivering formal wear that has been dry cleaned with tetrachloroethylene within the immediately
preceding one-week period; and (b) cause such sign to be posted within the interior of such vehicles in
a conspicuous place and under conditions that make it reasonably likely to be read and understood by
employees prior to any exposure to tetrachloroethylene in the vehicle.
c.
.Store Locations
With respect to Gary's store locations, no later than June 1, 2000, Gary's shall
use its best efforts to (a) cause a sign to be posted at each such store location in California where, in
connection with Gary's Formal Wear Business, Gary's rents or sells formal wear that has been dry
cleaned with tetrachloroethylene within the immediately preceding one-week period; and (b) cause
such sign to be posted within the interior of each such store location, in a conspicuous place and under
conditions that make it reasonably likely to be read and understood by employees prior to any
exposure to tetrachloroethylene at the store location.
3.2
Each sign referenced in paragraph 3.1, above, shall substantially meet the following
requirements:
a.
The sign shall be at least ten inches high by ten inches wide. The word
"warning" shall be centered three-quarters of an inch from the top of the sign, and shall be printed in
ITC Garamond bold condensed type face all in one-inch capital letters. Three-sixteenths of an inch
from the base of the word "warning" shall be a line extending from left to right across the width of the
sign one-sixteenth of an inch in thickness. For the body of the warning message, left and right margins
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of at least one-half inch, and a bottom margin of at least one-half inch shall be observed. Any larger
sign shall bear substantially the same proportions of type size and spacing to sign dimension as the
sign ten inches high by ten inches wide. The body of the warning message shall be in 36/50 ITC
Garamond bold condensed type face with the initial letter of each word, other than the conjunctive
"and," capitalized.
b.
The sign shall include the following language:
WARNING
This Area Contains A Chemical Known To The State Of California
To Cause Cancer.
California Health and Safety Code Section 25249.6
3.3
With respect to dry cleaning facilities, delivery vehicles or store locations not owned
by Gary's, in the event that Gary's has used its best efforts to cause a sign to be posted at the
locations and in the manner described in paragraph 3.1, above, and any third party fails or refuses to
allow the posting of a sign as described in paragraph 3.1, above, such third party shall not be
released pursuant to this Consent Judgment. Nothing in this paragraph 3.3 shall limit, modify or
otherwise affect the release provided pursuant to paragraph 5 of this Consent Judgment to any of
Gary's, the Related Entities or any other entity other than the third party who fails or refuses to
allow the posting of a sign as described in paragraph 3.1, above.
3.4
The Court has reviewed the language and format for the signs, as set forth in
paragraphs 3.1 of this Consent Judgment, and hereby finds, based upon the Attorney General's
Office's letter attached hereto as Exhibit A, that such language and format comply with Proposition
65 and the B&P Code and that, with respect to potential exposures of tetrachloroethylene (or any of
its breakdown products) to employees or consumers of Gary's Formal Wear Business, no additional
signs or other warnings are required pursuant to Proposition 65 or the B&P Code.
4.
MATTERS COVERED BY THIS CONSENT JUDGMENT
4.0
This Consent Judgment is a final and binding resolution between Mateel, both
individually and, as to those matters described in the Notice Letters and in the Complaint, as
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representative of the general public acting in the public interest, on the one hand, and Gary's, the
Related Entities, and/or any other person in the course of doing business who may manage, own,
use or operate any location in connection with Gary's Formal Wear Business, on the other hand, of
any violation of Proposition 65, the B&P Code, including the claims made in the Complaint, or any
other statutory or common law claim that could have been asserted against Gary's or the Related
Entities for failure to provide clear, reasonable, and lawful warnings relating to the conditions
described in the Complaint or the Notice Letters, or any other claim based on the facts alleged in the
Complaint or the Notice Letters, whether based on actions committed by Gary's, the Related
Entities, and/or any other person in the course of doing business who may manage, own, use or
operate any location in connection with Gary's Formal Wear Business.
4.1
Compliance with the terms of this Consent Judgment resolves any issues, now and in
the future, concerning compliance by Gary's and the Related Entities, and/or any other person in the
course of doing business who may manage, own, use or operate any location in connection with
Gary's Formal Wear Business of any alleged violation of Proposition 65 or the B&P Code, as these
alleged violations may pertain to the dry cleaning of fabric. This Consent Judgment shall have
preclusive effect with respect to the subject matter of the Complaint and Notice Letters, such that no
other person or entity, whether purporting to act in his, her, or its own interests or in the public
interest, shall be permitted to pursue Gary's, the Related Entities, or any other person in the course
of doing business who may manage, own, use or operate any location in connection with Gary's
Formal Wear Business, for any alleged failure to warn relating to dry cleaning performed by or for
the Formal Wear Business, or for any other alleged violation raised in the Complaint or Notice
Letters.
4.2
This Consent Judgment does not resolve any matter as to any non-defendant if that
matter did not or does not involve services performed for, on behalf of or in conjunction with Gary's
Formal Wear Business.
5.
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RELEASE OF GARY'S BY MATEEL
5.0
Mateel individually and, as to those matters described in the Notice Letters and in the
Complaint as representative of the general public acting in the public interest, by this Consent
Judgment, waives and releases any and all claims, demands, liens, causes of action and/or rights to
institute any form of legal action (including but not limited to claims for damages, penalties,
equitable relief, expert or attorneys' fees) ("Claims") against Gary's, the Related Entities, and/or any
other person in the course of doing business who may manage, own, use or operate any location in
connection with Gary's Formal Wear Business, including but not limited to all matters reflected in
the Notice Letters, all claims that were or could have been asserted in the action instituted by the
Complaint, or that otherwise arise under Proposition 65, the B&P Code, or any other statute or
common law rule that relates to or arises out of Gary's or the Related Entities' alleged exposure to
others, causing others to be exposed, or failure to warn about exposure, in connection with dry
cleaning performed by or for Gary's Formal Wear Business, to chemicals listed under Proposition
65 or any other hazardous substance.
5.1
In addition, Mateel individually and, as to those matters described in the Notice
Letters and in the Complaint as representative of the general public acting in the public interest, by
this Consent Judgment, waives and releases any and all Claims relating to alleged exposure to
hazardous substances purportedly resulting from dry cleaning performed by or for Gary's, the
Related Entities, or any person or entity that currently, in the past, or in the future, in the course of
doing business, managed or manage, owned or own, use or used, or operated or operate any location
in connection with Gary's Formal Wear Business, including such persons' or entities' corporate
parents, subsidiaries, predecessors, successors, partners, agents and affiliates, and any of their
officers, directors, agents, employees, shareholders, partners, insurers and attorneys.
5.2
With respect to dry cleaning performed by or for Gary's or the Related Entities in
connection with Gary's Formal Wear Business, this release is intended to be a full and complete
release of any and all Claims for damages, penalties, equitable relief, bodily injury, emotional
distress, personal injury, property damage, economic loss, attorneys' fees, expert fees, costs of
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litigation and all other damages of every kind and character which Mateel or, as to the matters
described in the Notice Letters and the Complaint, the general public now or in the future might
have, including but not limited to all such Claims relating to the action instituted by the Complaint,
and relating to Gary's or the Related Entities' alleged exposure of others or failure to warn at any of
their facilities or other locations about exposure to chemicals listed under Proposition 65 or any
other potentially hazardous substance, whether said claims now exist or come into existence in the
future, or whether the same be now known or unknown or whether the same be now anticipated or
unanticipated. In furtherance of this intention, Mateel and Gary's acknowledge that they are
familiar with any and all rights and benefits which they may have under section 1542 of the Civil
Code of the State of California, which provides as follows:
"Certain claims not affected by general release. A general release
does not extend to claims which the creditor does not know or suspect
to exist in his favor at the time of executing the release, which if
known by him must have materially affected his settlement with
debtor."
To the fullest extent permissible by law, Mateel, on its own behalf, and as to those matters described
in the Notice Letters and in the Complaint on behalf of the general public, hereby expressly waives
and relinquishes any rights or benefits which it or they had, now have or may have in the future
under section 1542 of the Civil Code of the State of California, or any similar provision of the
statutory or nonstatutory law, to the fullest extent that they may lawfully waive any such right and
benefit pertaining to the subject matter of this Consent Judgment. In this regard, Mateel
acknowledges that it is aware that it or its attorneys may hereafter discover claims or facts in
addition to or different from those which they now know or believe to exist with respect to the
subject matter of this Consent Judgment, and it is their intention hereby to fully, finally, and forever
settle and release all possible Claims Mateel may have against Gary's or the related Entities for or
relating to the subject matter set forth above. Further, it is expressly understood that
notwithstanding the discovery or existence of any such additional or different Claims or facts, the
PROP65
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releases given herein shall be and remain in effect as a full and complete release with respect to all
claims released hereunder.
5.3
This Consent Judgment does not release any non-defendant for any matter that did
not or does not involve services performed for, on behalf of or in conjunction with Gary's Formal
Wear Business.
5.4
Notwithstanding any other provision of this Consent Judgment, Gary's is not released
pursuant to this Consent Judgment as to any enforcement action that public prosecutors may bring
that pertains to (a) Proposition 65 environmental exposures to people living near any Gary's dry
cleaning facilities if those exposures occur more than six months after the date that this Consent
Judgment is entered, or (b) any other exposure or violation that does not relate to Proposition 65 or
the B&P Code.
6.
ENFORCEMENT OF JUDGMENT
6.0
The terms of this Consent Judgment shall be enforced exclusively by the parties
hereto. The parties may, by noticed motion or order to show cause before the Superior Court of San
Francisco County, giving the notice required by law, enforce the terms and conditions contained
herein. In any proceeding brought by either party to enforce this Consent Judgment, such party may
seek whatever fines, costs, penalties or remedies as may be provided by law for any violation of the
Consent Judgment.
7.
MODIFICATION OF JUDGMENT
7.0
This Consent Judgment may be modified only upon written agreement of the parties
and upon entry of a modified Consent Judgment by the Court thereon, or upon motion of any party
as provided by law and upon entry of a modified Consent Judgment by the Court.
8.
SETTLEMENT PAYMENT
8.0
Within 30 days of the entry of this Consent Judgment, Gary's shall pay the total sum
of $7,500 to Klamath Environmental Law Center, representing reasonable costs and attorneys' fees
incurred on behalf of Mateel in investigating this matter and negotiating this Consent Judgment on
PROP65
News-38047
behalf of themselves and the general public. Except as specifically provided in this Consent
Judgment, each side shall bear its own costs and attorneys' fees.
8.1
Within thirty (30) days of entry of this Consent Judgment, Gary's shall contribute the
total sum of $7,500 to one or more non-profit groups that Mateel shall designate. These funds are to
be used to educate the public about exposures to hazardous substances or to protect the public from
those exposures.
9.
AUTHORITY TO STIPULATE
9.0
Each signatory to this Consent Judgment certifies that he or she is fully authorized by
the party he or she represents to enter into this Consent Judgment and to execute it on behalf of the
party represented and legally to bind that party.
10.
RETENTION OF JURISDICTION
10.0
This Court shall retain jurisdiction of this matter to implement the Consent
Judgment.
11.
ATTORNEY GENERAL CONCURRENCE
11.0
As reflected in the letter attached as Exhibit A hereto and incorporated herein by this
reference, the Attorney General has (1) reviewed and approved any warning proposed pursuant to
paragraph 3 of this Consent Judgment, (2) represented that such warning complies with Proposition
65 and the B&P Code, and (3) represented that, with respect to potential exposures of
tetrachloroethylene (or any of its breakdown products) to employees or consumers of Gary's Formal
Wear Business, no additional signs or other warnings are required pursuant to Proposition 65 or the
B&P Code.
12.
ENTIRE AGREEMENT
12.0
This Consent Judgment contains the sole and entire agreement and understanding of
the parties with respect to the entire subject matter hereof, and any and all prior discussions,
negotiations, commitments and understandings related hereto. No representations, oral or
otherwise, express or implied, other than those contained herein, have been made by any party
PROP65
News-38048
hereto. No other agreements not specifically referred to herein, oral or otherwise, shall be deemed
to exist or to bind any of the parties.
13.
GOVERNING LAW
13.0
The validity, construction and performance of this Consent Judgment shall be
governed by the laws of the State of California and the terms and conditions of this Consent
Judgment shall be effective only in the State of California.
14.
COURT APPROVAL
14.0
If this Consent Judgment is not approved by the Court, it shall be of no force or
effect, and cannot be used in any proceeding for any purpose.
DATED: 4 ~ "
~___,2000
JONES, DAY, REAVIS & POGUE
David J. Dilgl~glio
"U
Attorneys for Defendants
PARTNERSHIP; AND GARY S. AND SERA
BRILL
PROP65
DATED:~I _~_~,2000
News-38049
KLAMATHENVIRONMENTAL
LAW CENTER
Wi|liam Verick
Attorneys for Plaintiff
JUSTICE FOUNDATION
DATED: ~__~_~, 2000
~s~y ~o~~
..
By: ~,~,i~/~ri~k,v,.~eu
Its:
DATED: April~:0,2000
f....~
--
THE GARY'SCOMPANIES,INC.
Br~~%~
Its:
DATED: April~1, 2000
"~ , ~ ~
PA.a2,~,g2~, . t -
THE GARY'SGROUP,LLC
y.~i]
it
DATED: April~t), 2000
v
l~r k2-,. a - o e - ~ , a
e~rae~,~
tq"~
PROP65
News-38050
DATED: April 00, 2000
DATED: April ~I)_,2000
SERA BRILL
ORDER
IT IS SO ORDERED, ADJUDGED AND DECREED.
DATED:
,2000
COURT
RONALDE. QUIDACHAY'
9
Exhibit A
PROP65
News-38051
PROP65
BILL LOCKYER
Attorney General
News-38052
California
DEPARTMENT OF JUSTICE
9e o f
1300 1 STREET. SUITE 125
P.O. BOX 944255
SACRAMENTO, CA 94244-2550
Public: (916) 324-5475
Facsimile: (916) 327-2319
(916) 324-5475
November 9, 1999
David J. DiMeglio, Esq.
Jones, Day, Reavis & Pogue
Suite 4600
955 West Fifth Street
Los Angeles, CA 90013-1025
William Verick, Esq.
Klamath Environmental Law Center
424 First Street
Eureka, CA 95501
RE:
Mateel Environmental Justice Foundation v. The Gary's Companies, et al.
San Francisco Superior Court No. 992372
Dear Gentlemen:
In accordance with your mutual request, our office has reviewed the proposed Consent
Judgment agreed to in the ease named above. You have asked whether the form and content of
the warning described in Paragraph 3 of that draft Consent Judgment comply with the
requirements of Proposition 65 and the regulations issued under that statute.
While we do not comment herein on the terms of the draft Consent Judgment in general,
we agree that, if the warnings are actually given in the manner, and using the language, provided
for in the draft Consent Judgment you have given us, those warnings constitute adequate
compliance with the warning requirements of Proposition 65 for warnings, of occupational
exposure to tetraehloroethylene in connection with dry cleaning and formalwear. Based upon the
facts referred to in the notice and alleged in the complaint, and relating solely to exposures from
rented formalwear and from drapery dry cleaning, we do not believe that warnings to consumers
are required in the particular situations addressed by this case, because exposures do not appear
to occur at levels that require such warnings.
Our opinion as to the sufficiency of the warnings addresses only compliance with Health
and Safety Code section 25249.6, which requires clear and reasonable warnings of exposure to
PROP65
News-38053
David J. DiMeglio, Esq.
November 9, 1999
Page 2
chemicals known to the State of California to cause cancer, and not section 25249.5, which
prohibits discharge of such listed chemicals to drinking water. We believe that the issue of
discharge is not addressed by this case, and that the release that would be given by the draft
Consent Judgment is limited by its own terms to the matter addressed in the notices and in the
complaint. We believe that no release is given by the draft Consent Judgment of any possible
claim of the public under section 25249.5. As you know, it is our position that nojudgment in a
private suit binds the Attorney General, absent our consent. However, we do not contemplate
bringing any aetion at this time.
If you have further questions, please do not hesitate to contact me.
Sincerely,
SUSAN L. DURBIN
Deputy Attorney General
For
e.,c-
Craig C. Thompson, AAAG
Ed Weil, DAG
BILL LOCKYER
Attorney General
PROP65
News-38054
AFFIDAVIT OF COMPLIANCE WITH HEALTH & SAFETY CODE w 25249.7(0
I, William Verick, am an attomey of record in the case of Mateel Environmental Justice
Foundation v. The Gary's Companies, et al. San Francisco Superior Court Case No. 311658. I
make the following declaration from personal knowledge. If called, I could and would testify
competently as follows:
With regard to the complaint, settlement and proposed Consent Judgment in the above
referenced case, the report required under California Health & Safety Code w 25249.7(0 has been
accurately completed and submitted to the Attorney General. I declare under penalty of perjury
under the laws of the State of California that the foregoing is true and correct and that this
Declaration was executed on May 8, 2000 at Eureka, California.
William Verick
PROP65
News-38055

Environmental Justice Foundation The Gary`s Companies,

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