People v. ConAgra Grocery Products Co.

Citation: Not availableDocket: H040880

Court: California Court of Appeal; November 13, 2017; California; State Appellate Court

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The People of the State of California succeeded in a public nuisance lawsuit against ConAgra Grocery Products Company, NL Industries, Inc., and the Sherwin-Williams Company, resulting in a court order for the defendants to pay $1.15 billion for the abatement of lead paint nuisances in residential properties. The defendants challenge the judgment on various grounds, including lack of substantial evidence for knowledge, promotion, causation, and abatability, as well as separation of powers, due process violations, denial of a jury trial, and other procedural errors. The court found that substantial evidence does not support causation for residences built after 1950 and directed further proceedings on appointing a suitable receiver, while rejecting the defendants' other arguments.

The trial highlighted the severe health risks of lead, particularly to children, who face irreversible brain damage from exposure. Lead-based paint is identified as the predominant source of childhood lead exposure, especially in pre-1978 housing, with children in pre-1946 homes being three times more likely to have elevated blood lead levels compared to those in post-1978 homes. Lead paint, primarily composed of white lead carbonate, poses significant risks due to its high lead content and the propensity for children to ingest lead paint chips. The evidence underscored that there is no safe exposure level for lead, as even minimal blood lead levels can lead to cognitive and behavioral issues in children.

Bone lead levels provide a more accurate assessment of lead's impact on intellectual abilities than blood lead levels, which may underrepresent exposure effects. Blood lead levels below 5 micrograms per deciliter correlate with reduced academic performance, lower IQ, cognitive challenges, behavioral issues, and antisocial behaviors. Childhood lead exposure has lasting repercussions into adulthood, affecting reproductive health, birth weight, fertility, and cardiovascular disease risks. Intact lead paint remains a significant hazard as it deteriorates over time, especially on high-use surfaces like windows and doors, ultimately leading to lead dust in homes. Over one-third of pre-1978 homes with intact lead paint contain lead dust, contrasting with only 6 percent of homes without lead paint. Lead in soil around homes primarily originates from lead paint rather than leaded gasoline, with older homes, particularly those built before 1940, being more likely to harbor lead-based paint hazards. Homes with lead paint are significantly more prone to elevated lead dust and soil levels above EPA standards. Lead paint generates soil lead through various mechanisms, including wear from window and door usage and during repainting. Lead dust can be transported into homes, posing additional risks. The toxicity of lead paint has been acknowledged since the 19th century, with historical accounts of lead poisoning in children highlighting the dangers associated with lead paint exposure. Despite historical recognition of these risks, the severity of the lead paint threat has often been downplayed, resulting in increased risk for many children. Legislative efforts to ban lead paint in child-accessible areas date back to the early 20th century, with expert testimony suggesting that calls for such regulations were evident by 1909.

A seven-page annotated bibliography was prepared, listing numerous articles reviewed, highlighting the acknowledgment in medical literature of the harmful effects of lead on children, even in small amounts. A 1931 British Medical Journal article described the "insidious" effects of minimal lead doses over time, while a 1935 American journal noted their "insidious, cumulative effects" that could be "obscure." A 1938 British article stated that harmful effects begin immediately upon absorption of lead and asserted that no safe threshold exists for lead exposure. A 1943 American article emphasized the impact of early childhood lead poisoning on intelligence and academic performance, recommending a ban on lead paint use in homes.

In 1910, the U.S. House of Representatives considered a bill to label products containing white lead with warnings, citing European countries' prohibitions on its use due to health risks. The bill failed despite testimonies from prominent scientists and medical professionals regarding the dangers of lead dust inhalation. In 1914, Henry Gardner acknowledged the health risks of white lead dust in a speech, yet the primary use of white lead remained as a paint pigment throughout the 20th century. Companies such as NL, SWC, and Fuller, leaders in the lead paint industry, were aware of lead dust's toxicity and its production from lead paint applications, continuing to manufacture and promote lead-based paints for residential use into the 1920s.

Sales of white lead peaked in 1922, followed by a decline in lead paint usage through the 1920s and early 1930s, reaching a low by 1944 during World War II. NL manufactured white lead carbonate pigment from 1891 to 1978 at facilities in San Francisco and Los Angeles, selling these pigments to California paint manufacturers and promoting their use in residential paints across ten jurisdictions from 1900 to 1972. NL acknowledged the health risks associated with lead dust in its 1912 annual report and was aware by the mid-1920s that lead paint posed severe risks to children. Despite this knowledge, NL continued to market lead paints for residential use and produced a consumer handbook in 1950 advocating for lead paint application in homes.

ConAgra's predecessor, Fuller, produced white lead carbonate pigment from 1894 to at least 1958, moving its manufacturing from San Francisco to South San Francisco in 1898. Fuller recognized the toxicity of lead dust, as noted in a 1919 article regarding its plant. SWC also manufactured paints with white lead carbonate pigments starting in 1880 and acknowledged the dangers of lead paint in a 1900 publication. SWC operated until 1958, selling lead paint until 1972, with production facilities in Emeryville and Los Angeles.

Both Fuller, NL, and SWC were members of the Lead Industries Association (LIA) and the National Paint, Varnish, and Lacquer Association (NPVLA), which promoted lead paint usage. The LIA, established in 1928, conducted advertising campaigns to bolster lead consumption, despite being aware of health concerns surrounding white lead. Notably, NL participated in a 1930 LIA meeting where an article highlighted the increasing incidents of lead poisoning in children, emphasizing the dangers posed by lead-laden paint on accessible objects.

In 1934, the Lead Industries Association (LIA) initiated its Forest Products campaign to promote lead paint for residential interiors. During a 1935 annual meeting, the LIA acknowledged the disproportionate impact of childhood lead poisoning on poor and minority children, with thousands of annual cases, yet opposed regulatory measures on lead. A 1937 LIA conference discussed both industrial and childhood lead poisoning, revealing research indicating the difficulty of removing lead from a child's body. The LIA's leadership requested confidentiality on the discussions to prevent negative publicity linking lead paint to poisoning. The Forest Products campaign persisted until 1941. In contrast, the National Paint, Varnish and Lacquer Association (NPVLA) represented paint manufacturers regardless of lead use and conducted advertising campaigns throughout the early 20th century without distinguishing between lead and non-lead paints. Lead paint was eventually banned in the U.S. in 1978. 

In 1991, the CDC set a blood lead level (BLL) concern threshold of 10 mcg/dL, later adjusted to a reference value of 5 mcg/dL in 2012, indicating high exposure among the worst affected children. Data showed that 5.3% of children in pre-1950 housing exceeded this level, compared to 0.4% in post-1978 housing. The California Legislature enacted the Childhood Lead Poisoning Prevention Act in 1995, establishing the Childhood Lead Poisoning Prevention Program (CLPPP) under the Department of Public Health. This program focuses on outreach, education, and tracking lead exposure, particularly for children aged one and two. Health care providers must screen children in low-income programs for lead poisoning, with laboratories required to report BLLs. A child is considered lead poisoned if their BLL exceeds 19.5 mcg/dL or persistently exceeds 14.5 mcg/dL, prompting home visits by health specialists to identify lead sources. While national BLLs have significantly decreased since the 1970s, in 2010, approximately 22,000 children in California had BLLs above 4.5 mcg/dL, with over 2,000 children exceeding 10 mcg/dL at the time of the 2013 trial.

In California, 0.35 percent of children have blood lead levels (BLLs) exceeding 9.5 mcg/dL, with ongoing exposure to lead paint in homes leading to significant health issues. In Alameda County, lead poisoning from lead paint is the primary environmental health concern, with approximately 75 percent of homes built before 1980. The county can screen only 46 percent of low-income children under six living in pre-1978 homes. Lead poisoning cases are opened when a child has a BLL of 20 mcg/dL or two BLLs of 15 mcg/dL, with 14 cases reported in 2012. There is no funding for remediation, and outreach is limited for children with BLLs of 5 mcg/dL or higher. 

Los Angeles County also faces significant lead paint-related health issues, with 77 percent of housing built before 1978, leading to about 6,500 children under six with BLLs over 4.5 mcg/dL in 2010. The county's program typically focuses on screening rather than primary prevention, managing 75 to 100 cases annually, primarily linked to pre-1978 housing.

Monterey County reports 66 percent of its housing built before 1980, leading to 13-15 new cases each year of children with BLLs of 20 mcg/dL or higher, mostly between ages one and three. The county also sees cases linked to imported foods.

In Oakland, where 80-90 percent of housing predates 1978, the Lead Safe Housing Program receives 16-20 referrals annually from Alameda County for home assessments. San Diego has 60.5 percent of its housing built before 1980, with over 300,000 pre-1978 units. The city’s Lead Safety Healthy Homes Program has conducted over 2,700 lead inspections from 2005 to 2013, identifying hazards in more than half of these cases.

In San Francisco, 94% of homes were built before 1978, equating to over 317,000 units, with 68% constructed before 1950. Approximately 22,000 housing units occupied by low and moderate-income families are suspected to have lead-based paint hazards. The city’s Childhood Lead Poisoning Prevention Program (CLPPP) contacts parents when a child’s blood lead level (BLL) reaches 2 mcg/dL or higher, with lead paint identified as the predominant source of exposure. In 2010, of 10,300 children tested under six, 959 had BLLs between 4.5 and 9.5 mcg/dL, and 35 were above that threshold. Since then, lead exposure cases have increased, prompting around 200 notices annually to correct lead hazards.

In San Mateo County, lead paint is the primary source of lead poisoning, affecting 80-90% of its housing, which includes over 200,000 pre-1978 units. In Santa Clara County, two-thirds of the housing stock is pre-1978, impacting over 426,000 homes, with lead paint being the leading environmental cause of childhood poisoning. In 2010, Santa Clara County tested less than 20% of children under six, revealing significant elevated BLLs among those tested. 

Solano County faces a critical lead poisoning issue, with substantial harm occurring even at low exposure levels, impacting children's cognitive abilities. Testing in this county is limited, with only about 20% of children under six tested due to healthcare access issues. Between 2001 and 2012, 55% of children with high BLLs were exposed solely to lead paint. Solano County has over 75,000 pre-1978 homes, yet lacks resources for enforcing lead hazard codes or remediation.

Ventura County has nearly 174,000 pre-1978 housing units, with 34 children showing BLLs higher than 10 mcg/dL in 2010. Its CLPPP does not conduct environmental investigations for children with BLLs between 5 and 15 mcg/dL, focusing instead on educational outreach. The document emphasizes the need for primary prevention measures, including inspections, risk assessments, education, and remediation to reduce lead exposure risk in these jurisdictions.

Nationally, BLLs in children under six have declined significantly since the late 1970s, dropping from a geometric mean of 15 mcg/dL to 1 mcg/dL by 2009/2010.

The percentage of children under six with blood lead levels (BLLs) exceeding 10 mcg/dL has decreased significantly from over 80% to less than 0.5%. A similar decline is observed for those with BLLs over 5 mcg/dL, particularly in the western region, including California, where BLLs are 25-30% lower than in other areas. From 2007 to 2012, most jurisdictions also reported reductions in elevated BLLs. A defense expert attributed lower BLLs to decreased lead exposure, primarily from leaded gasoline, suggesting minimal impact from lead paint on overall community BLLs. Another expert highlighted the historical context of lead poisoning, noting the lack of awareness prior to 1970 and that lead poisoning was once viewed as an adult industrial disease. Testing for BLLs only became available in the 1930s, and significant awareness of lead from household dust emerged after 1974. The CDC established various intervention levels for BLLs over the decades, with a notable level of concern set at 10 mcg/dL in 1991. A defense epidemiologist stated that even in 2003, the cognitive effects of BLLs below 10 mcg/dL were unclear, criticizing a study by a plaintiff's expert as flawed. SWC's contribution of lead to California from 1894 to 2009 was only 0.1% of the total lead consumed, although the estimate was limited to a specific manufacturing period and relied on national data. Additionally, a defense expert argued that properly maintained lead paint does not inevitably deteriorate but acknowledged that deterioration can occur, particularly on friction surfaces. He also admitted that repainting requires surface preparation, which can be intrusive and disruptive, as highlighted by an abatement expert.

The remediation process for hazardous waste, including asbestos, is detailed as invasive, labor-intensive, and time-consuming, with cost estimates deemed unrealistically low. The speaker indicated that such remediation could extend lead exposure risks for residents, noting that window replacements do not lower blood lead levels (BLLs) and that remediation might actually increase these levels. 

In March 2011, the plaintiff filed a fourth amended complaint (FAC) alleging public nuisance against ConAgra, NL, SWC, Atlantic Richfield Company (ARCO), E.I. Du Pont de Nemours and Company (DuPont), and 50 Doe defendants, claiming their actions contributed to lead presence in homes. The FAC sought abatement, injunctive relief, and damages. The court confirmed that the case pertained solely to residential properties. Jury demands by defendants were struck, leading to a court trial in July and August 2013. 

In March 2014, the court issued an amended decision, recognizing the severe health risks of lead exposure, especially from deteriorating lead paint in pre-1978 residences. It found that ConAgra, NL, and SWC were aware of these hazards when promoting lead paint. Consequently, defendants were ordered to contribute $1.15 billion to an abatement fund for lead inspections, education, and remediation efforts in the affected jurisdictions, which they appealed.

Defendants challenged the sufficiency of evidence supporting the public nuisance claim, arguing that the plaintiff did not adequately prove their knowledge of lead paint hazards, their promotion of it, causation of the nuisance, or the abatement's effectiveness in reducing BLLs. They asserted that these claims should be reviewed as questions of law, referencing Smith v. Selma Community Hosp., although they were found to be misapplying that precedent.

The court conducts an ordinary deferential substantial evidence review rather than an independent review of another body’s decision. The appellate court's role is limited to determining whether substantial evidence exists to support a finding of fact, without weighing evidence, assessing credibility, or resolving conflicts in testimony. Defendants argue that implied findings cannot be presumed in their favor due to "key ambiguities" in the trial court’s statement of decision. If a statement of decision is ambiguous or does not resolve a contested issue, and this was brought to the trial court’s attention, it cannot be inferred that the trial court ruled in favor of the prevailing party on those points. Specific objections to the statement of decision must be clearly articulated to enable the trial court to address identified deficiencies. A trial court is not obligated to respond to every issue raised in a request for a statement of decision, as long as its decision adequately reveals its determinations on ultimate facts and material issues. Following the trial, both parties submitted proposed findings and objections to the court’s proposed statement of decision, which was later amended. Defendants identified six ambiguities in the court's decision, including uncertainties regarding the defendants' knowledge of lead hazards and the basis for liability connected to their promotions of interior paint. Ultimately, the trial court is only required to address ultimate findings, which refer to core facts essential to a claim or defense.

Citation distinguishes between 'evidentiary facts' and 'conclusions of law.' In the case of Yield Dynamics, Inc. v. TEA Systems Corp. (2007), only one of the six alleged "ambiguities" raised by defendants relates to a "core fact." SWC's objections to the court’s proposed statement of decision included a request to define 'harmful' in relation to the defendants' knowledge about lead's dangers, emphasizing the lack of awareness regarding low-level exposure risks at the time lead paint was promoted. ConAgra supported SWC's objections, seeking clarification on what hazards Fuller was aware of when promoting lead paint and the timeline of that knowledge. NL also requested specific identification of its knowledge at the relevant time. The court's treatment of the "harms" and "hazards" is addressed in the analysis of the defendants' knowledge findings. 

The court ultimately rejected the defendants' claim of ambiguity regarding a "core fact," determining that the alleged ambiguities pertained to evidentiary facts. Prior to reviewing substantial evidence, it was noted that reliance could not be placed solely on plaintiff's expert testimonies, which, while appearing to support the plaintiff's case, require a foundation based on material evidence and reasoning. The expert testimony is limited in that it cannot include case-specific facts based on hearsay unless independently verified or within a hearsay exception. Defendants' challenges regarding hearsay will be considered in a later section of the opinion.

An expert's conclusion lacks evidentiary value if based on unsupported assumptions, speculative factors, or matters not reasonably relied upon by other experts. Such conclusions cannot constitute substantial evidence unless grounded in facts proven by substantial evidence. A trial court's acceptance of an expert's conclusion without critical examination of the underlying reasoning necessitates a reversal of judgment for lack of substantial evidence. Defendants argue that the trial court only found constructive knowledge, which does not suffice for a public nuisance claim, as established in Santa Clara I, where actual knowledge is required. Liability hinges on defendants' promotion of lead paint for interior use, knowing the associated hazards, which is a more severe offense than merely producing a defective product. The court emphasized that the public nuisance claim arises from the affirmative promotion of lead paint for hazardous uses rather than from products’ defects or failure to warn. The trial court explicitly found that all defendants possessed actual knowledge of lead paint hazards, including childhood lead poisoning, during their production and marketing activities.

SW[C] had actual knowledge of the dangers of lead paint, particularly childhood lead poisoning, throughout its production and sale of lead pigments and paint for home use. The standard for establishing actual knowledge is based on reasonable inferences drawn from substantial evidence, allowing for reliance on circumstantial evidence as long as it is not speculative. Actual knowledge can be inferred when circumstances indicate that the defendant “must have known” rather than “should have known” about the risks. The court found that defendants were aware of the harms associated with lead exposure, having learned about them through industry conferences since the 1930s. Specifically, it was determined that they knew by the 1920s that lead paint could deteriorate, producing harmful lead dust that posed a serious risk to children. The trial court’s findings confirmed that defendants were aware that lower levels of lead exposure could harm children and that lead paint's deterioration would result in dangerous lead dust. Evidence presented to the trial court indicated that by 1914, the paint manufacturing industry recognized the dangers of deteriorated lead paint, further substantiating the conclusion that defendants must have known about the serious risks of lead paint in residential settings. Additionally, a 1910 congressional hearing addressed the issue of lead poisoning, highlighting the longstanding awareness of the problem.

The proposed bill mandated that products containing white lead be labeled with a skull and crossbones alongside the warning "White lead: poison." Congressman Richard Bartholdt, the proposal’s sponsor, noted that painters, initially opposed, had largely shifted to support the regulation of white lead due to its harmful effects. He referenced France's complete prohibition of white lead and highlighted similar legislative actions across Europe. Bartholdt expressed concerns about the unknown health impacts of inhaling lead particles released from painted surfaces, linking them to lead poisoning.

Support for the bill included testimony from proponents citing findings by prominent British scientists regarding the dangers of inhaling lead dust from painting. Conversely, Eugene Philbin, representing major paint manufacturers, opposed the labeling requirement, arguing it was unnecessary and would instill consumer fear. Ultimately, the bill did not pass.

In a later speech in 1914, Gardner from the Paint Manufacturers Association acknowledged the health risks associated with white lead dust, attributing its presence to the mixing of white lead with turpentine. He claimed that the use of flatted white lead was diminishing in favor of leadless paints, although lead paint continued to be widely used in residential settings despite known toxicity. Major companies in the lead paint industry, such as NL, SWC, and Fuller, continued to promote the mixing of lead paint with turpentine in their guidelines, indicating ongoing industry practices that disregarded the acknowledged health risks.

In 1912, NL produced over 20 brands of Dutch Boy White Lead, a brand established in 1907. By the late 19th century, Fuller emerged as a leading seller of white lead on the West Coast and was a significant player in the U.S. paint, oil, and glass industries. During the early 20th century, NL, SWC, and Fuller, as industry leaders, were aware of the dangers of lead dust, which was recognized as poisonous. They understood that lead paint would generate lead dust shortly after application and that this was a known hazard discussed in both a 1910 congressional hearing and a 1914 speech by the Paint Manufacturing Association. 

Evidence indicates these defendants had actual knowledge of the hazards associated with their products. The 1930s saw the LIA provide confirmatory information about lead poisoning risks to its members, including Fuller, NL, and SWC, highlighting that even small amounts of lead could harm children, particularly from painted objects. This information reinforced prior knowledge regarding the dangers of lead paint in residential settings. 

The trial court's findings of actual knowledge were supported by substantial evidence, with reasonable inferences drawn from the circumstantial evidence available. The appellate review adhered to a deferential standard, which necessitated viewing the evidence favorably towards the prevailing party. Consequently, the findings that NL, SWC, and Fuller were aware of the risks posed by interior residential lead paint were upheld, despite ConAgra's claim regarding a lack of evidence of Fuller’s knowledge in the early 20th century.

Fuller is alleged to have had knowledge of the dangers posed by lead paint to children, contrary to ConAgra's claims that he was unaware of children consuming lead paint or only knew of isolated incidents that did not constitute a public health issue. ConAgra argues that Fuller could not have known about blood lead levels (BLLs) as there were no tests available at that time, and he was unaware of the specific ways children ingest lead dust, which were confirmed later. However, by 1914, Fuller, a major lead paint producer, was aware of the public health risks associated with lead paint, evidenced by a congressional hearing in 1910 and a speech in 1914 that highlighted the dangers of deteriorating lead paint. Additionally, information from the Lead Industries Association (LIA) in the 1930s further emphasized the frequency of lead poisoning among children from various sources, including lead paint. ConAgra's assertion that Fuller did not know about the consumption of lead paint or that it was infrequent, as well as the claim that knowledge of specific ingestion pathways was necessary, is dismissed as baseless. The court found that Fuller’s participation in the LIA contributed to his knowledge, irrespective of an agency relationship. ConAgra’s argument regarding the court's reliance on expert testimony related to hearsay was noted, but the evidence supporting these expert opinions was deemed substantial. Ultimately, the trial court confirmed that Fuller was aware of the risks associated with lead paint in residential settings, countering ConAgra's position that Fuller’s knowledge was limited to occupational exposure.

ConAgra's challenge regarding the sufficiency of evidence for the trial court's finding that Fuller was aware of the public health hazard posed by lead paint to children is rejected. NL argued that the evidence did not support a finding of actual knowledge about the dangers of lead paint in the early 1900s, particularly regarding lead exposure through invisible dust. However, the court clarified that it only needed to establish whether NL recognized that interior residential lead paint posed a significant risk to children, not the exact mechanism of harm. Substantial evidence from records, including a 1910 congressional hearing and a 1914 speech, indicated that NL was aware of these risks by 1914. NL's assertion that it lacked knowledge of the dangers of "low-level" lead exposure was countered by evidence suggesting that the risks to adults implied similar dangers for children. Furthermore, NL's involvement with the Lead Industries Association (LIA) provided them with additional information in the 1930s about the serious dangers of lead exposure to children, including comments from medical professionals about the severe consequences of lead ingestion. 

SWC's claim that the trial court's finding of its actual knowledge was based on "hindsight" is also dismissed. The court maintained that it was sufficient for SWC to have been aware, at the relevant time, of the significant risks posed by lead paint to children, without needing to prove knowledge of specific exposure pathways or low blood lead levels (BLLs). Evidence showed that SWC, which began producing lead paint in 1880, was aware by 1900 that lead paint could deteriorate and posed serious health risks, acknowledging lead as a "deadly cumulative poison."

SWC claimed that its understanding of the risks associated with deteriorating lead paint in 1900 was limited to its exterior use. However, the trial court reasonably concluded that SWC was aware that the deterioration of interior lead paint posed a more significant risk, particularly to young children confined to the home. The court found substantial evidence indicating that SWC had actual knowledge of the serious harm posed to children by interior residential lead paint.

The Promotion Defendants contested the trial court's findings of their active promotion of lead paint for indoor use. The legal focus is on whether the defendants created or contributed to a public nuisance through affirmative actions rather than merely manufacturing the product or failing to warn of its dangers. The lawsuit alleges liability based on the defendants' promotion of lead paint for interior use.

Defendants argued that the trial court's reliance on their advertising to support promotion findings infringed on their First Amendment rights. They also raised a new claim in a reply brief that a heightened standard of substantial evidence should apply due to First Amendment concerns. However, appellate courts typically do not consider new issues raised in reply briefs without good cause, which the defendants failed to demonstrate.

The court declined to address this new argument, noting that the only relevant First Amendment issue would pertain to the defendants’ promotional activities. Additionally, individual defendants challenged the sufficiency of evidence supporting the court’s findings of their affirmative promotion of lead paint for interior use. The court determined that reliance on First Amendment defenses was inappropriate, as commercial speech receives lesser protection than other forms of speech.

There are no constitutional objections to suppressing commercial messages that fail to accurately inform the public about lawful activities. The government is permitted to regulate communications that are more likely to deceive than inform the public or that concern illegal activities. The state retains the authority to regulate harmful commercial activities, even when those activities involve speech. In this case, the trial court ruled that advertisements promoting lead paint for interior residential use were not protected by the First Amendment. Defendants had objected to evidence of their commercial speech and association with trade organizations, but these objections were overruled.

For communication to be protected, it must not be misleading or related to unlawful activity. Restrictions on commercial speech must directly advance a state interest and cannot be overly broad if a narrower regulation would suffice. The California Supreme Court has recognized that holding defendants liable for promoting lead paint does not infringe their First Amendment rights, as any liability would not prevent future speech. Misleading promotions that imply safety of lead paint are not entitled to First Amendment protection. If defendants knowingly promoted lead paint despite its health risks, their promotions are misleading. Conversely, if they were unaware of the hazards at the time, this would not imply they created a public nuisance. The court found no First Amendment barrier to considering defendants' promotions in its decision, and individual challenges regarding the evidence supporting the trial court's findings are noted.

The examination of the plaintiff's claims necessitates a review of numerous advertisements purportedly promoting lead paint for interior residential use. Many of these advertisements do not support this assertion. Some specifically advocate for exterior use, while others mention a brand without clarifying the type of paint. Several advertisements refer to lead paint generically as “house paint” without designating it for interior applications. Additionally, some ads promoted interior use of certain paints without identifying them as lead paints, lacking evidence linking those paints to lead.

Stipulations between the plaintiff and NL (National Lead) and SWC (Sherwin-Williams Company) confirmed some paints as lead-based, but no such stipulation exists for Fuller or its acquired companies. Furthermore, many advertisements were placed by independent retailers, not by NL, SWC, or Fuller, making it difficult to attribute them to Fuller’s marketing efforts. Evidence showed that SWC supported local advertising by its dealers, while no evidence indicated Fuller’s involvement in such placements.

The plaintiff also referenced the Lead Industries Association (LIA) promotional campaigns, which were funded by member companies, including Fuller, SWC, and NL. The LIA campaigns, particularly the Forest Products campaign from 1934 to 1941, aimed to encourage the endorsement of lead paint for use on lumber and in residential settings. The campaign included initiatives like distributing painting instructions with lumber bundles and promoting lead paint through model homes at fairs.

In 1938, the Lead Industries Association (LIA) encouraged manufacturers of sash, window frames, and doors to label 20 million products emphasizing the use of white lead and high-grade prepared paint. By 1939, major lumber producers in the U.S. began specifying white lead or high-grade prepared paint due to the LIA’s influence, which also promoted Fuller’s lead paint for interior applications. A Vallejo paint store advertisement from 1949 described Fuller’s lead paint as an “all-purpose house paint.” An expert for the plaintiff claimed that painting instructions included methods for using paint on various surfaces in homes, although these instructions were not presented in evidence, relying instead on LIA documentation that only mentioned "siding." The expert's assertion regarding the term "siding" in relation to interior paneling lacked explanation.

The LIA's White Lead Promotion campaign, conducted in two phases from 1939 to 1944 and 1950 to 1952, aimed to boost market demand for white lead. This campaign generated numerous advertisements promoting lead paint for interior use, with specific promotions in 1939 and 1940 highlighting its suitability for residential interiors, including walls and ceilings. By 1941, lead paint sales had significantly increased due to these campaigns, although sales declined during and after World War II. The LIA briefly revived its promotion efforts in the early 1950s but eventually ceased specifically promoting white lead paint, despite its campaigns prolonging the use of lead pigments.

ConAgra argues there is insufficient evidence that Fuller promoted lead paint for residential interiors with the necessary awareness, citing that Fuller’s advertisements post-1929 did not directly encourage lead paint use in homes, and that Fuller ceased selling lead paint for interiors after 1948. Evidence showed that Fuller had sold lead paint in ten jurisdictions from 1894 to 1961.

Between 1894 and 1948, Fuller marketed lead-based products, specifically Pure Prepared 37 Paint and Pioneer White Lead in Oil, alongside non-lead paints. These products were sold through Fuller’s stores and independent dealers across 10 jurisdictions until 1961. Testimonies from the plaintiff's experts indicated that Fuller actively promoted the use of its lead paints, distributing brochures and advertisements that recommended these products for residential use. While many advertisements were for other non-lead paints, some explicitly promoted Fuller’s lead paints for all purposes, including residential interiors, particularly noted in a 1927 advertisement and various ads from 1937. A pivotal piece of evidence was a 1931 brochure detailing instructions for using lead paint in residential interiors, which was widely disseminated to consumers. Fuller participated in promotional campaigns by the Lead Industries Association (LIA) in the 1930s and 1940s that encouraged the use of lead paint for indoor applications. The court found that Fuller’s promotional activities constituted a significant factor in contributing to public nuisance regarding lead paint, regardless of whether the advertisements explicitly mentioned lead or if Fuller ceased production in 1948. Claims that Fuller did not engage in LIA promotions were contradicted by substantial trial evidence.

Substantial evidence indicates that Fuller promoted lead paint for interior residential use starting in 1931 and continued through the LIA’s promotional campaigns in the 1930s and 1940s, with awareness of the associated dangers for children. NL argues its advertisements were not misleading, claiming they only highlighted lead paint's protective and aesthetic qualities. However, the promotion of lead paint for interior use was inherently misleading by implying safety. NL contends that its promotional activities after 1950 should negate any findings of liability, but the court found that such a timeframe is only relevant to causation, not to the evidence of prior promotion with knowledge of risks. 

NL stipulated to having manufactured and promoted lead paint for residential use from 1900 to 1972, including specific products known to contain white lead. Expert testimony indicated that NL marketed its Dutch Boy lead paint for interior use, including in children’s materials that suggested safety in various settings like playrooms and on furniture. Advertisements from the early 20th century, including those in prominent publications, confirmed NL's promotion of lead paint for interior use. Additionally, while Bass-Hueter products were mentioned, there was no evidence that specific Bass-Hueter paints contained white lead, despite some advertisements from 1931 promoting interior residential use without confirming lead content.

Bass-Heuter advertisements from 1922 and 1925 referred to their paints containing “permanent pigments” but were not admitted as truthful representations. Consequently, these ads do not prove that NL (presumably a paint company) promoted lead paint for interior residential use. However, a 1938 advertisement for Dutch Boy, NL’s brand, described it as "All Purpose Lead," and a 1950 advertisement promoted NL’s lead products for such use. NL participated in promotional campaigns for lead paint in the 1930s and 1940s. Their 1929 paint book for children featured a character encouraging the use of Dutch Boy White Lead paint and promoted it as suitable for interior use, instructing children to share a coupon with their parents. The paint book was used as a promotional tool for many years and clearly advocated for lead paint in residential interiors. Additionally, a 1949 salesman’s manual stated that NL’s lead paints were suitable for both exterior and interior jobs, and a 1950 handbook highlighted the advantages of white lead paint for interior surfaces, emphasizing its durability and beauty. The trial court found substantial evidence indicating NL actively promoted lead paint for interiors from 1915 to 1950, with knowledge of the associated dangers to children as early as 1914. In contrast, SWC argued that no evidence was presented to show that they promoted lead paint for interior residential use.

SWC began manufacturing lead paint in 1880 and white lead carbonate pigment in 1910, producing Old Dutch Process (ODP) white lead in oil until 1947. Between 1910 and 1913, SWC also manufactured “Inside Floor Paint” with some colors containing white lead. Their other white lead paints were part of various product lines, including SWP “house paint” until 1950 and “Family Paint” colors in the 1940s. Despite stipulations that SWC’s Family Paint did not contain white lead sulfate or carbonate before 1941, a 1926 training manual claimed it contained “White Lead Sulfate” pigment. No post-1936 advertisements for Family Paint were found. SWC produced several lead paints, including Monarch House Paint and ACME Quality House Paint, and promoted itself as a leading producer of white lead in 1934. Advertisements emphasized the importance of selecting the correct paint for specific uses, with some promoting SWP for both interior and exterior applications. However, the parties agreed to disregard evidence of SWC’s Family Paint being marketed for interior use before 1941, despite earlier advertisements suggesting otherwise. Additionally, SWC’s SWP Mildew Resisting White and other colors contained lead until 1954 and 1950, respectively. SWC sold lead paint called Zilo for interior use and participated in the LIA’s campaign promoting lead paint for residential interiors from 1937 to 1941. Notably, SWC had knowledge of the health hazards of lead paint as early as 1900 but continued to promote it for interior use, supporting claims of wrongful promotion.

Defendants argue that the plaintiff failed to provide sufficient evidence linking their promotion of lead paint for interior residential use to the public nuisance that the trial court mandated they address. They present several key points: 

1. **Lack of Impact Evidence**: Defendants claim there is no proof that their promotions influenced the use of lead paint in residential interiors.
2. **Remoteness of Promotions**: They assert that their promotional actions are too distanced from the current public health risks associated with lead paint, attributing the hazards mainly to homeowner neglect and renovation activities.
3. **Timeframe of Responsibility**: Since defendants ceased promoting lead paint for interior use after 1950, they argue that they cannot be liable for homes built after that year, despite the trial court ordering remediation for homes constructed before 1980.
4. **Causal Connection**: The defendants contend there is no evidence connecting their promotions to the water leaks and soil lead that necessitated remediation.
5. **Proportionality of Liability**: They assert that due process demands their liability be proportionate to their actual contributions to the lead paint issue.
6. **Causation Requirement**: Causation is essential in public nuisance claims, requiring that a defendant's conduct be a substantial factor in causing the harm. The standard for causation is that a defendant's contribution must be more than negligible.

Despite these arguments, evidence suggests that the defendants’ promotions played at least a minor role in the creation of the current nuisance, particularly through their involvement in the Lead Industries Association’s Forest Products campaign, which commenced in 1934 and reportedly influenced manufacturers to incorporate lead into their paint formulas.

In 1939, the LIA reported significant developments from the Forest Products campaign, highlighting that all major soft and hard lumber producers in the U.S. endorsed the use of white lead or high-grade prepared paint. This was facilitated through the distribution of 2 million painting instruction leaflets. Additionally, some paint companies increased the lead content in their products, and sash and door manufacturers planned to produce 20 million labels promoting white lead paint for use on doors and windows. By 1941, the campaign continued to thrive, with lumber associations independently distributing painting leaflets advocating for white lead paint, and the National Door Manufacturing Association also participating. The campaign significantly contributed to the hazardous use of lead paint, particularly on doors and windows, which poses risks to children due to dust from friction surfaces.

Both NL and Fuller directed consumers to use their lead paints on residential interiors. Fuller’s 1931 brochure provided explicit "Directions for Use" for residential interiors, and its advertisements encouraged consumers to obtain these brochures. NL's 1929 paint book and its 1950 "Handbook on Painting" also recommended white lead paint for interior surfaces. By persuading manufacturers to attach recommendations for lead paint on windows and doors, and by instructing consumers on its use in homes, NL and Fuller played critical roles in the prevalence of lead paint in residential interiors. The trial court could reasonably conclude that these promotions were substantial factors in the presence of lead paint across ten jurisdictions, despite defendants’ claims of minimal influence. The LIA's extensive advertising efforts further promoted lead paint to key stakeholders, solidifying the defendants' direct involvement in its residential use.

The LIA assessed its promotional campaigns as successful, as evidenced by the continued presence of lead paint in residential interiors across ten jurisdictions long after these campaigns ended. It is reasonable to infer that each defendant's promotion of lead paint contributed, albeit minimally, to the ongoing issue of lead paint in homes. Defendants argue that their promotions are too remote to be considered a legal cause of the current lead hazards, attributing the situation instead to owner neglect, renovations, and other factors over time. 

Legal causation requires that a defendant's actions be a substantial factor in causing the injury, as defined in Soule v. General Motors Corp. (1994). Proximate cause, which limits liability, involves two elements: cause in fact, where an act is a necessary antecedent of an event, and policy considerations that impose additional limitations on liability. Proximate cause is concerned with the connection between conduct and injury, as well as public policy implications.

The determination of proximate cause is typically a factual issue, though courts may intervene if evidence clearly indicates a lack of sufficient connection. Defendants contend that their past promotions are too remote from the current hazards, but this remains a factual question for the trial court. A rational factfinder could conclude that the defendants' promotions were not unduly remote from the presence of lead paint in residences, particularly within a reasonable time frame after the promotions. The cases cited by defendants do not substantiate their claims, as they involve different legal principles or contexts.

Lead paint's presence was significantly linked to the defendants' promotional activities, which were found to be a substantial factor in creating the current hazard, despite the involvement of others and passive neglect of property owners. The trial court could reasonably conclude that these promotions constituted the legal cause of the existing nuisance. However, the defendants successfully argued that there was insufficient evidence to connect their promotions to post-1950 homes containing lead paint, particularly those built before 1980. The plaintiff claimed that the defendants' promotions prolonged lead paint use throughout the 20th century, inferring this from the extensive promotional activities and the current presence of lead paint in ten jurisdictions. 

Despite this, the plaintiff failed to provide concrete evidence of any affirmative promotion by National Lead (NL) or others for lead paint use in homes after 1950. The identified advertisements merely showcased NL's “Dutch Boy” paints without specifically endorsing lead paint for interior use. NL acknowledged that certain paints contained lead but argued that their marketing did not equate to endorsing lead paint for interiors. The plaintiff's argument relied on the premise that NL’s identification as the maker of Dutch Boy paints implied a promotion of lead paint, a claim deemed unfounded. Additionally, NL contended that after 1955, all lead paint was labeled as unsuitable for interior residential use, substantiated by expert testimony regarding a 1955 American Standards Association standard aimed at minimizing health risks from paint exposure for children.

A liquid coating material intended for items like furniture and toys must contain no more than 1 percent lead to be considered safe for areas accessible to children. The applicable standard, American Standard Z66.1-1955, allows for marking compliance but does not require labeling for lead paint. While the participation of the Lead Industries Association (LIA) in establishing this standard might suggest compliance among its members, the trial court was not obligated to infer this. The standard explicitly states that it does not prevent parties from using products that do not meet its criteria, and there is no evidence of enforcement or compliance with the standard since its inception. 

The plaintiff's argument that the existence of lead paint in residential interiors proves causation linked to defendants' promotions prior to 1951 is deemed speculative. While it is reasonable to infer that these promotions increased lead paint usage during their active period, there is insufficient evidence to assert that this influence persisted for decades following. Consequently, the trial court's mandate for remediation of all homes built before 1981 is unsupported by evidence connecting causation for homes constructed after 1950.

Regarding soil lead and water leaks, the defendants challenge the trial court's remediation plan, which prioritized homes built before 1950 over those built from 1950 to 1981. The court did not treat these homes as an indivisible group, as it differentiated based on construction dates. The court’s approach requires recalculating the abatement fund on remand. Testimony indicated that lead contamination in soil can arise from various sources, including the deterioration of lead paint due to environmental factors and prior paint jobs, with the highest lead concentrations found near the home.

Exterior elements of homes are susceptible to weathering, and windows often contain high lead concentrations that may contribute to soil contamination due to previous painting jobs involving sanding and scraping. Lead-based paint is identified as a major source of lead contamination in soil and house dust. The plaintiff demonstrated that lead paint on interior friction surfaces of windows and doors was a primary contributor to soil lead contamination. Consequently, the judgment mandates soil lead remediation only in homes with interior lead paint, supporting the court's finding that soil lead in these cases was linked to the residential use of lead paint.

The court's decision to include remediation of water leaks, which can deteriorate intact interior lead paint and pose risks to children, is justified as a necessary precaution. The plaintiff did not argue that these leaks were caused by the defendants’ promotions. The defendants argued that liability for promoting lead paint requires proof of the presence of their specific brands within the homes, but this perspective misinterprets the basis of liability. The defendants are accountable for promoting lead paint for interior use, and the manufacturers' identities are irrelevant as long as their promotions significantly contributed to the usage of lead paint in residences.

Lastly, defendants claimed they should only be liable in proportion to their contributions to the public nuisance, arguing that due process prohibits remedies that are excessively disproportionate to their conduct. However, the court clarified that proportionality pertains to liability, not causation, in public nuisance cases.

Defendants can be held liable for public nuisance if their wrongful actions significantly contributed to its creation. The trial court found sufficient evidence to support liability for homes built before 1951. While defendants may litigate to determine proportionate liability, the remediation plan's lack of liability apportionment does not undermine the court's causation conclusion. Defendants argue that they should only be liable for their specific contributions, citing the Restatement, which states that the burden is on the defendant to provide evidence for apportionment. If apportionment is not possible, all contributors are liable for the total harm. The trial court reasonably determined that harm in this case was not apportionable, holding all three defendants jointly and severally liable.

Regarding the ability to abate lead in homes, defendants claim the plaintiff did not prove this could be done at a reasonable cost. However, previous rulings in Santa Clara I established that liability for nuisance does not depend on property ownership or control, but rather on the creation or contribution to the nuisance. The court refused to revisit this issue. Defendants' argument about reasonable cost references Mangini v. Aerojet-General Corp., which addressed statute of limitations rather than the costs of abatement. The California Supreme Court indicated that while the plaintiffs failed to prove the nuisance was abatable in that case, this ruling does not apply when the statute of limitations is not at stake. The court did not express an opinion on whether a timely filed nuisance action requires proof of reasonable abatement costs for an injunction.

Defendants' arguments are unconvincing, as the case of Mangini II does not support their claims. Their reliance on County of San Diego v. Carlstrom is also inappropriate, as that case involved defendants seeking alternative abatement options for structures deemed public nuisances. Out-of-state cases from Rhode Island and New Jersey cited by the defendants are irrelevant because they do not apply California law. Beck Development Co. v. Southern Pacific Transportation Co. similarly does not aid defendants, as it focused on the statute of limitations concerning private nuisance and did not address their cost or abatability claims. 

Defendants argue that the plaintiff failed to demonstrate that lead paint poses an imminent danger or that the abatement plan will effectively lower children's blood lead levels (BLLs). The plaintiff counters that substantial evidence indicates lead paint presents a significant risk and that specific abatement methods, such as replacing doors and windows, are effective in reducing lead exposure. Defendants refer to Helix Land Co. v. City of San Diego, which involved a failure to prove imminent risk from flood control issues; however, this case does not support their position because the current situation involves clear evidence of harm from lead paint affecting children across ten jurisdictions. Civil Code section 3479 allows for judicial discretion in assessing the seriousness of dangers justifying abatement. The evidence shows ongoing lead poisoning among children in these areas, establishing that the presence of interior lead paint constitutes a continuous and imminent risk to their health.

The trial court acted within its discretion in concluding that the presence of interior residential lead paint in ten jurisdictions posed a serious and imminent risk warranting abatement. Defendants argued against the necessity of abatement, claiming the plaintiff had not demonstrated that it would lower blood lead levels (BLLs) in children. However, the plaintiff provided expert testimony supporting the effectiveness of abatement in reducing BLLs, which the trial court deemed admissible despite defendants labeling it “inadmissible guesswork.” The defendants failed to show that the trial court abused its discretion in admitting this evidence, and their reference to the Sargon Enterprises decision did not support their argument since it affirmed the trial court's role as a gatekeeper regarding expert opinion validity.

Moreover, the defendants' claim that the court ordered abatement of all "intact" lead paint was misleading; the court's plan involved applying paint stabilization techniques to intact surfaces, with only the highest-risk areas targeted for removal, such as lead-painted windows and doors. This approach aimed to mitigate the risks of contamination rather than exacerbate them.

On the issue of public nuisance, the defendants contended that the plaintiff did not establish that the lead paint interfered with any public right. Under California Civil Code, a public nuisance is defined as a condition causing injury to health or obstructing the comfortable use of property, affecting a community or considerable number of persons. While not every social interest interference qualifies as a public nuisance, it must be substantial and unreasonable, meaning it causes significant harm while lacking sufficient social utility. The excerpt emphasizes that the trial court was entitled to credit the evidence and that appellate courts should defer to its credibility assessments.

The trial court did not identify any “public right” in its decision regarding the issue of interior residential lead paint, which the defendants argue causes only private harms. However, the court agrees that this is a legal issue. Defendants claim that a public nuisance must harm the public's exercise of a public right and that lead paint in residences poses no such threat. They argue that the public does not have a right to enter private homes, and therefore, any lead exposure occurring there cannot interfere with a public right. 

The ruling counters this by asserting that residential housing is a shared community resource essential for accessing other public utilities, and that lead exposure in such environments threatens the community's right to safe housing, particularly concerning children's health. The court dismisses the defendants' reliance on precedents from Rhode Island and Illinois, emphasizing the broader protections afforded under California law. 

Additionally, defendants argue that interior lead paint cannot be a public nuisance since it does not violate any regulatory standards, citing Health and Safety Code section 17920.10, which they interpret as deeming intact lead paint not hazardous. However, the court clarifies that this statute actually identifies buildings with lead hazards as violations, asserting that the presence of deteriorated lead paint constitutes a public nuisance under California law.

"Lead hazards" are defined as deteriorated lead-based paint, lead-contaminated dust, or lead-contaminated soil, as well as the act of disturbing lead-based paint without proper containment, when these exist in quantities that meet or exceed specified levels in California's regulatory framework and pose a potential health risk to the public or occupants. In the absence of new regulations from the State Department of Health Services clarifying these terms, existing regulations will apply. Should new regulations be adopted, they will override previous interpretations. The statute does not exempt any type of lead paint from being classified as a hazard nor authorize its presence in buildings. Although not all lead paint in residential interiors constitutes a violation of the Health and Safety Code, it can still be deemed a public nuisance. The court retains the authority to declare lead paint a public nuisance despite the absence of explicit laws against it, and compliance with existing statutes does not protect a building from future abatement actions. Specific thresholds are established for what constitutes lead hazards: 2 square feet in any interior space, 20 square feet on exterior surfaces, or 10% of the surface area for components with smaller surface areas, such as window sills and baseboards.

Lead-based paint and related materials are classified as lead hazards if an area smaller than specified is linked to an individual with a blood lead level of at least 10 micrograms per deciliter. The State Department of Health Services may adopt new regulations regarding terms such as "deteriorated lead-based paint" and "lead-contaminated dust," with a minimum three-month deferment for implementation following approval, maintaining prior definitions until then. The trial court categorized lead paint as a nuisance but did not declare its mere existence as a nuisance per se, which requires explicit legislative declaration. Instead, the court ordered the abatement of deteriorated interior lead paint and lead-contaminated soil based on evidence of health threats to children. This order was consistent with Civil Code section 3479 and did not infringe on separation of powers, countering defendants' claims that the Legislature's 2001 actions indicated a rejection of lead paint as a public nuisance. The defendants misrepresented the legislative history regarding lead paint's status in residential contexts.

Conditions on real property identified by local health departments as posing lead hazard risks to children are categorized as public nuisances under Section 3479 of the Civil Code. Assembly Bill No. 422, introduced in 2001, aimed to address lead hazards but was not limited to residences and did not pertain to "intact" lead paint; it required a local agency's determination for a public nuisance declaration. In contrast, Senate Bill No. 460 focused on lead hazard abatement, establishing Health and Safety Code section 17920.10, which deems a dwelling untenantable if it contains lead hazards, primarily deteriorated lead paint. Senate Bill No. 460 also mandates enforcement agencies to take action against buildings with lead hazards, including repair, rehabilitation, vacation, or demolition, and allows for criminal charges against non-compliant parties.

The rejection of Assembly Bill No. 422 does not indicate a legislative intent to dismiss the potential for lead paint conditions in residences to be deemed public nuisances. The Legislature's actions reflected a commitment to addressing lead hazards through abatement and enforcement measures. The defendants' arguments regarding adverse policy implications of the trial court's abatement order do not warrant a reversal; a multifaceted strategy may be necessary to tackle the issue effectively. Evidence suggests that California's existing framework, including the Childhood Lead Poisoning Prevention Branch (CLPPB) and local programs, does not fully mitigate childhood lead exposure. The CLPPB operates with an annual budget of $28 million, primarily funded by the Childhood Lead Poisoning Prevention fee, which is supported by industries responsible for lead pollution, particularly in architectural coatings and motor vehicle fuels.

"Architectural coating" refers to products applied to the surfaces of stationary structures, portable buildings, pavements, and curbs, including house paints, varnishes, stains, and industrial coatings. Lead was present in motor vehicle fuel from the 1920s until its phased elimination in the 1990s, with ongoing harm to children in ten jurisdictions from lead paint. Evidence indicated that a trial court's abatement order would mitigate this risk, and the Legislature has not barred courts from using public nuisance law to prevent further harm. The societal cost of lead poisoning is estimated at $50 billion annually, with preventative measures yielding savings between $17 and $220 for every dollar spent.

Defendants argued that the trial court erred in imposing joint and several liability, claiming it placed an unfair burden on them given the involvement of multiple parties in creating the nuisance. However, the court found no evidence to support the apportionment of the abatement remedy, which it deemed indivisible. Liability in public nuisance cases can be indivisible, depending on the nature of the harm, and the burden of proof for apportionment lies with the defendants. When apportionment is impossible, each defendant is liable for the entire harm caused. Even if defendants are not acting in concert, if the damages are indivisible, each is held responsible for the total damages. This principle ensures that innocent plaintiffs are not left without redress due to difficulties in proving the extent of individual contributions to the harm.

Wrongdoers are advised to negotiate among themselves for liability apportionment. The principle established in *Finnegan v. Royal Realty Co.* indicates that while relative culpability can be assessed, each defendant's negligence contributes to the overall indivisible injury. Under the doctrine of equitable indemnity, defendants can allocate their respective liabilities without affecting a plaintiff's right to recover the full judgment from any single defendant, as reinforced by *Sanchez v. Bay General Hospital*.

The trial court found that the defendants did not demonstrate that the public nuisance was divisible. Specifically, SWC claimed minimal responsibility for the total lead used in California and sought to apportion liability based on its contributions and the involvement of numerous others in lead paint usage. However, the court concluded that SWC's evidence did not substantiate a division of liability related to the public nuisance from lead paint promotion. Evidence indicated that lead's predominant uses were nonresidential, and the CLPP fee was unrelated to the specific conduct of promoting lead paint in residences. Additionally, SWC failed to prove that other parties involved in lead paint usage acted with knowledge of its dangers, thus not qualifying them as joint tortfeasors.

The court upheld the imposition of joint and several liability because the defendants could not establish the divisibility of the public nuisance. Defendants further contested the court’s collective nuisance declaration, arguing it violated their due process rights by not allowing property-specific defenses. They argued that the plaintiff should have identified each property to establish public nuisance. The defendants contended that individual inspections were necessary to demonstrate the absence of their lead products or to attribute liability to other sources. They maintained that due process prohibits holding one defendant responsible for a nuisance created by the actions of others.

The trial court's abatement order specifically targeted conditions resulting from interior residential lead paint that posed an imminent risk to children, rather than categorically declaring all such paint a public nuisance. The plaintiffs demonstrated that the conditions were widespread across ten jurisdictions, but the full extent of affected locations has not been completely identified. Defendants, who promoted lead paint for residential use, are liable for the costs of remediation, given the pervasive nature of the nuisance they created. The court ruled that the defendants’ due process rights were not violated, as they received adequate notice of the general conditions rather than specific property access. Defendants could not effectively distinguish their lead paint from others at specific sites, and even if they could show their paint was limited to certain properties, the identity of the manufacturer was deemed minimally relevant. The court rejected the defendants’ claims regarding individual defenses, noting that the case does not involve class action principles or individual recoveries. Additionally, the court found that the defendants’ argument about disproportionality in the abatement order was unfounded, as their actions significantly contributed to the public nuisance, and thus, the remediation requirements were proportionate to their responsibilities. The defendants’ references to punitive damages and penalties were deemed irrelevant in this context, as they were not facing punitive measures or damages.

Defendants are required to remediate hazardous conditions they contributed to, which is deemed appropriate relative to their wrongdoing. Their claim of facing "retroactive liability" is dismissed, as they are being held accountable solely for their promotion of lead paint, aware of its health risks. Defendants argue that the trial court erred by denying them a jury trial, asserting a constitutional right under California law for public nuisance actions. They contend that common law in 1850 recognized a jury trial right in such cases, except for nuisances per se. While both plaintiff NL and ConAgra demanded a jury trial, the plaintiff later moved to strike those demands, stating that abatement actions do not warrant a jury. The trial court granted this motion, leading to a bench trial.

California's Constitution guarantees a jury trial, typically reserved for legal actions rather than equitable ones. The right to a jury trial is historically based on common law from 1850, and the court assesses whether the nature of the action warrants a jury based on its essence rather than its form. If the action is fundamentally legal, a jury trial is required. The constitutional right is interpreted broadly, extending to similar cases that may arise in the future.

The central issue is whether the common law recognized a right to a jury trial in 1850 for government-initiated public nuisance actions that sought only abatement. Distinctions are drawn between cases of “like nature,” with many cited cases involving private nuisance or seeking damages rather than equitable relief. Public nuisance, defined as an interference with community rights, differs from private nuisance, which pertains to individual land enjoyment. Although damages can be pursued in both public and private nuisance claims, they are not available in representative public nuisance actions brought by the government. California’s nuisance statute allows for actions to abate public nuisances but does not authorize damage recovery in such cases. Consequently, the focus is on whether a jury trial right existed in 1850 for government-initiated representative public nuisance actions seeking solely abatement. Defendants reference an 1849 treatise by Justice Joseph Story, which indicates that public nuisances were traditionally addressed through indictment or injunction, and suggests the possibility of a jury trial in cases of doubt. However, reliance on the treatise alone is insufficient; the underlying cases cited must be evaluated to determine if a jury trial right was indeed recognized for the specific type of action at issue. One cited case is The Attorney General v. Cleaver, which may provide further insights into this legal question.

Cleaver involved a legal action initiated by the Attorney-General on behalf of local residents, seeking both temporary and permanent restraining orders against a factory causing harm to the community. The court was tasked with deciding whether to grant a pretrial injunction. Ultimately, the court declined to issue an injunction prior to determining if the factory constituted a nuisance, emphasizing that if the soil belonged to the Crown, the Crown had remedies for obstruction. However, if the case was a public nuisance affecting the King's subjects, it necessitated a jury trial to ascertain the facts.

Despite the Attorney-General's involvement, the manufacturer argued that the case was not a public prosecution but rather one brought by individual inhabitants, highlighting a distinction in the nature of the claims. Cleaver indicated that a jury trial might have been necessary for a public nuisance action seeking an injunction, although it did not involve a remedial abatement order, but rather a prohibitory injunction.

In a subsequent case, Earl of Ripon v. Hobart (1834), the court distinguished between prohibitory injunctions and other forms of injunctive relief. In this case, the government sought an injunction against the use of steam engines for drainage, arguing that they would damage riverbanks. The Chancellor refused the injunction, clarifying that the court would only intervene in cases of clear and immediate nuisance without waiting for trial results. If the activity in question was not inherently harmful, the court would typically wait for a trial to determine its potential nuisance, reflecting a cautious approach to interfering in property use that may be beneficial to one party, while only potentially harmful to others. The court's jurisdiction over nuisance by injunction had developed recently and was exercised sparingly, showing reluctance even in cases of acknowledged harm to the complainant.

The Chancellor's explanation in *Earl of Ripon* highlights the restrictive rules regarding equity courts' authority to issue injunctions, which were still developing and had not been clearly defined in *Cleaver*. The Chancellor was hesitant to grant an injunction due to the nuisance being contingent and prospective, as such relief could impede potentially beneficial activities. This contrasts with remedial abatement orders, which address established harmful conditions without barring future beneficial actions. The Chancellor's rule did not mandate a jury trial for remedial abatement orders.

Cases referenced by Justice Story fall under the rule outlined in *Earl of Ripon*, primarily dealing with prohibitory injunctions against actions that might be advantageous or not definitively harmful. In *Attorney-General v. Cohoes Co.*, the court denied a motion to dissolve an injunction intended to prevent a mill company from damaging a canal, emphasizing the need for a trial to assess potential public nuisance. Similarly, *Attorney General v. Forbes* involved a pretrial injunction to avert the potential creation of a nuisance related to bridge repairs between two counties; no jury trial was required in either case.

*Crowder v. Tinkler* involved private plaintiffs seeking to prevent construction near their properties. It differed as it was not a public nuisance case and sought a prohibitory injunction. In *Mohawk Bridge Co. v. Utica*, the court noted that if the action being restrained is inherently a nuisance, injunction relief could be granted to prevent irreparable harm without awaiting trial outcomes, but if not, then the complainant's right must be clear.

Bucks proposed a repair plan for a bridge that involved replacing the old oak joists with new ones, which Berks rejected. Consequently, Bucks modified its approach, leaving the old joists intact while installing new joists only from the center to the last pier in Bucks County, relying on the old joists for support. Berks then indicated intentions to cut the old joists at the center, jeopardizing the bridge's structural integrity. In response, Bucks sought a preventative injunction, arguing that cutting the joists would lead to a public nuisance by leaving the bridge center unsupported. The court granted a pretrial injunction to prevent this action. 

The excerpt further discusses legal principles regarding injunctions, noting that courts may grant them to prevent significant imminent harm, even if the injury is not certain. It references prior cases, including Mohawk and Baines v. Baker, where private parties sought prohibitory injunctions against perceived nuisances. In contrast, the Attorney General v. The United Kingdom Electric Telegraph Company illustrates a case where the court was hesitant to grant an injunction without clear evidence of public nuisance, emphasizing the need for legal rights to be established before equitable relief can be granted. The court favored jury trials for factual determinations, reflecting a cautious approach to injunctions in nuisance cases.

The Electric Telegraph opinion indicated that a jury trial could be suitable for determining if the wires constituted a public nuisance, but it did not assert a "right" to a jury trial in such cases, nor did it decide if a jury trial was necessary for a public nuisance action that sought only a remedial abatement order. The court concluded that the presented evidence did not support a finding of public nuisance and deemed it appropriate for a jury to evaluate the matter in that specific case. An alternate version of the opinion presents different language where the court questions whether the acts in question constitute a nuisance and expresses readiness to send the case for jury trial rather than granting an injunction based on insufficient evidence. The court also differentiates between claims made by the Baron and the Attorney General, emphasizing that the right in ordinary equity suits must be established at law before relief can be granted, though this distinction is deemed irrelevant to the current issue. The court was uncertain about the nuisance status of the posts and wires and noted that the determination of nuisance is typically suited for jury investigation. Even accepting the alternate version does not support the defendants' argument, as the court refrained from issuing a preventative injunction due to inadequate evidence but left open the possibility of acting after a jury trial. The current action did not seek a preventative injunction, and the trial court found adequate evidence for a remedial injunction, making Electric Telegraph inapplicable. Additionally, in Walter v. Selfe, a private nuisance action did not mandate a jury trial for government public nuisance actions seeking only remedial injunctions. Similarly, Imperial Gas Light and Coke Company v. Broadbent involved private nuisance and did not pertain to public nuisance actions.

To obtain a perpetual injunction, the applicant must first establish their right through a legal proceeding, particularly in the context of private nuisance actions seeking a prohibitory injunction. Historical distinctions between prohibitory injunctions and abatement orders were acknowledged as early as the 1850s in England, exemplified by Attorney-General v. Birmingham Council, where the Chancellor granted an abatement order despite the defendants' argument for a common law remedy. 

Several U.S. cases cited by the defendants are distinguishable as they involved private parties in actions for damages rather than public nuisance cases seeking abatement. For instance, Gunter v. Geary dealt with damages against a municipal authority, without addressing the necessity of a jury trial for public nuisance abatement requests. Additionally, Farrell v. City of Ontario involved a private nuisance claim against a municipality, which resulted in a jury trial but ultimately favored the defendants.

The Pennsylvania case Appeal of McClain acknowledged the power of equity courts to address public nuisances but emphasized that such jurisdiction is contingent on prior establishment of rights at law or mutual concession. It also reinforced the principle that a jury should resolve disputed facts before property can be condemned as a nuisance. However, McClain is less relevant due to its later date and its focus on property destruction, which differs from the current case that does not threaten the defendants' property. Thus, it holds limited weight in determining common law rights as they existed in 1850.

Plaintiffs argued on appeal that they were entitled to a jury trial, asserting that the trial court erred by entering judgment against the jury's verdict. The court in **Farrell** referenced previous cases, establishing that under 1850 English common law, a plaintiff seeking an injunction for a common-law right must prove their case at law if the existence of the right or its violation is contested, thereby necessitating a jury trial if requested. Consequently, the parties were entitled to a jury trial regarding damages, and the jury's verdict was binding.

However, the **Farrell** court clarified that equitable issues should be resolved by the court based on its findings of fact. The decision did not clarify whether a jury trial is required in government-initiated public nuisance actions seeking only remedial abatement orders. In **Pacific Western Oil Co. v. Bern Oil Co.**, the court ruled that defendants were deprived of their jury trial right in a case involving both legal and equitable remedies, aligning with **Farrell**. This case partially overruled **McCarthy v. Gaston Ridge Mill. Mining Co.**, where the court denied a jury trial in a private nuisance case, emphasizing that abating a nuisance falls under the court's equitable jurisdiction, not entitling parties to a jury trial. 

Although **Pacific Western** overruled **McCarthy** regarding the right to a jury trial in private nuisance actions seeking both injunctions and damages, the California Supreme Court has not definitively ruled on jury trial rights in government-led public nuisance cases seeking only abatement. In **Sullivan v. Royer**, the court reaffirmed that no right to a jury trial exists in equitable actions aimed at abating nuisances, deeming any jury instruction errors irrelevant.

The California Supreme Court's decision in Richardson v. City of Eureka (1895) established that there is no constitutional right to a jury trial in public nuisance cases aimed solely at abatement. The court noted that an in rem forfeiture action is comparable to a public nuisance abatement action, and historically, such cases did not entitle parties to a jury trial at common law. Specifically, the court referenced that property used for lawful purposes cannot be classified as contraband or a public nuisance merely due to its involvement in a crime. Innocent property cannot be forfeited without a jury trial if there are factual disputes regarding its use. While there is no constitutional right to a jury trial for the seizure of contraband, the court emphasized that not all property involved in a public offense qualifies as contraband or a nuisance. Numerous Court of Appeal cases, including People v. Frangadakis (1960) and People v. Englebrecht (2001), reaffirm this position, consistently rejecting claims for a jury trial in government-initiated public nuisance abatement actions. There remains no definitive ruling from the California Supreme Court regarding the necessity of a jury trial in representative public nuisance cases seeking only remedial abatement orders.

Defendants failed to demonstrate that the trial court erred in concluding that there was no right to a jury trial under common law for a representative public nuisance action in 1850, especially one seeking only remedial abatement. Historical evidence indicates that such cases were not exclusively tried in common law courts and could also be resolved in equity courts. The defendants' argument that they were deprived of a jury trial is rejected based on this historical context.

Regarding the abatement fund, the trial court mandated the establishment of a fund, to be administered by the State of California, to address the public nuisance, requiring defendants to pay $1.15 billion within 60 days of judgment. This fund would be used for remediation over a four-year period, with any remaining funds returned to the defendants proportionally after the program's completion. The Superior Court of California retains ongoing jurisdiction over the plan's implementation.

Defendants argued that the abatement order was essentially a disguised damages award for past harm to private properties, over which they had no control. However, the court clarified that abatement is typically enforced through equitable injunctions, and any modifications or dissolutions of such injunctions are subject to the trial court's discretion. Moreover, a public entity cannot recover funds already spent on remediation in a representative public nuisance action, a principle affirmed in a prior case. The trial court’s order did not seek to reimburse any previously incurred costs to the plaintiff or the involved jurisdictions.

The court issued an abatement order requiring defendants to deposit funds into an abatement fund designated for the future remediation of a public nuisance, explicitly prohibiting the use of these funds for reimbursing the plaintiff, ten jurisdictions, or homeowners for any past expenses. The abatement fund is characterized as an equitable remedy, aimed solely at eliminating ongoing hazards causing prospective harm, unlike damages, which compensate for prior harm resulting from wrongful conduct. The court highlighted that abatement orders are appropriate for continuing nuisances, while permanent nuisances typically lead to damage claims. The plaintiff sought abatement to prevent ongoing harm to children, not compensation for previous damages. Any unused funds after the four-year abatement period would be returned to the defendants. The court's decision to create an abatement fund overseen by a knowledgeable receiver was deemed reasonable and not an abuse of discretion. The defendants' reliance on the precedent from County of San Luis Obispo v. Abalone Alliance was found to be misplaced, as that case involved the recovery of already-incurred costs, which are classified as damages and not recoverable in abatement actions. The distinction between abatement funds and damages was further supported by the Third Circuit's ruling in United States v. Price.

The case involves an appeal regarding the denial of a preliminary injunction related to alleged contamination of a city's water supply. The Third Circuit upheld the district court's discretion but criticized its overly narrow interpretation of remedial powers. It clarified that damages typically compensate for injuries rather than fund preventative measures. In this instance, funding a diagnostic study aimed at addressing ongoing contamination is a preventive step necessary to avert more severe future harm to the water supply. While the trial court's requirement for defendants to pre-fund remediation costs is unconventional, it is deemed a reasonable exercise of discretion. The California Supreme Court previously indicated that defendants might have to expend resources to mitigate a nuisance they created.

Defendants raised concerns about the lack of judicial oversight and the potential for unused funds to be returned. However, the court retained jurisdiction over the implementation of the plan and mandated that any remaining funds after four years be returned to defendants based on their initial contributions. Claims that the abatement fund would go into the State treasury were also dismissed, as the court specified that funds would go into a dedicated and restricted abatement fund.

Additionally, the issue of laches, raised by ConAgra as a defense against the public nuisance claim, was rejected by the trial court. While generally subject to deferential review, the question of whether laches is a legally viable defense is subject to de novo review. Notably, Civil Code section 3490 states that no amount of time can legalize a public nuisance obstructing public rights.

ConAgra argues that the statute in question does not apply because interior residential lead paint does not obstruct any public right. However, it has been established that pervasive lead paint in residential housing across ten jurisdictions indeed obstructs the public right to safe housing, as it makes many homes unsafe for young children. ConAgra's assertion that Civil Code section 3490 does not apply is rejected, as this section is not limited to ongoing conduct and is relevant to addressing public nuisances that violate the law. Allowing ConAgra to evade responsibility for abating this nuisance would perpetuate its unlawful nature. 

Furthermore, ConAgra's claim that public policy supports the application of laches is unfounded; laches cannot be applied against a governmental body when it would undermine public policy aimed at protecting the public. Civil Code section 3479 reinforces the legislative intent to combat public nuisances, underscoring that protecting public welfare takes precedence. Consequently, the trial court correctly dismissed ConAgra's laches defense, and there is no need to consider its argument regarding the nature of the public nuisance as permanent versus continuing.

Defendants argue that the trial court made several procedural and evidentiary errors, specifically: 

1. Admitting hearsay documents, allowing expert testimony based on these documents, and considering limited purpose hearsay documents for their truth, contrary to Evidence Code section 1280.
2. Issuing a blanket ruling that disallowed recross-examination.
3. Imposing time constraints and rejecting offers of proof and deposition designations.
4. Shifting the focus of the relevant product from white lead to lead paint during the trial.
5. Failing to provide defendants adequate time to analyze the “RASSCLE” database, which was only fully disclosed three weeks before trial.
6. Denying defendants the opportunity to inspect specific properties.
7. Not sanctioning the plaintiff for spoliation of evidence.

Regarding hearsay documents, defendants claim the court erred by allowing such documents that did not meet the statutory requirements into evidence, permitting expert historians to provide opinions based on these documents, and allowing them to quote from limited purpose documents during testimony. The trial court had indicated that an objection from one defendant would apply to all, resulting in a collective analysis of the objections. However, defendants’ appellate arguments were unclear, making it difficult to pinpoint specific rulings being challenged. Additionally, a memorandum submitted by defendants regarding the admissibility of scientific and government publications was not recognized by the court as a formal objection. Defendants did not adequately preserve their hearsay objections during the trial, failing to object at critical moments. Notably, they claimed that expert historian Rosner was unqualified to testify about the impact of Fuller’s promotion of lead paint on residences.

Written objections raised did not include hearsay claims or address the defendants' contentions on appeal. The defendants referenced a defense objection regarding the admission of an exhibit related to ConAgra's liability as a successor to Fuller and also pointed to an objection made by ConAgra concerning the foundation and Evidence Code sections 802 and 803 regarding testimony from plaintiff's expert Markowitz about Fuller’s awareness of lead dangers. The court overruled these objections, noting no connection to the defendants’ evidentiary arguments on appeal.

The court acknowledged that expert Mushak could use inadmissible hearsay to support his opinion, clarifying that documents not admitted for their truth could still assist in evaluating expert testimony. The court stated that evidence from public agencies would be admissible under Evidence Code Section 1280, a point unchallenged by the defendants. They later objected to the admission of a 2012 NIH monograph on low-level lead exposure, which was ruled admissible under the same evidence code section. Additionally, defendants objected to a 1922 Mineral Resources Yearbook from the Department of the Interior, containing lead production statistics, which also fell under the admissibility criteria of Evidence Code Section 1280.

To qualify as an exception to the hearsay rule, a writing must meet three criteria: it must be made by a public employee within their duty scope, at or near the time of the related act, condition, or event, and its sources and preparation methods must indicate trustworthiness.

A trial court holds broad discretion in determining whether foundational requirements for admissibility are established, and its rulings imply necessary factual findings. A reviewing court can only overturn such rulings upon clear evidence of abuse of discretion. The trial court did not abuse its discretion in admitting a monograph and a mineral yearbook under Evidence Code section 1280, as both documents were prepared by public employees in the course of their duties. The monograph, detailing a peer-reviewed NIH study, was reasonably deemed timely and based on trustworthy sources. The mineral yearbook, compiled by the Department of the Interior, provided recent mineral production data and was also considered to utilize reliable sources.

Defendants raised a footnote referencing exhibits 8, 17, 19, and 253 as having been admitted over hearsay objections under Evidence Code section 1280 but offered no specific arguments or citations regarding these exhibits. Exhibit 8, a 1910 Congressional hearing transcript, faced no express hearsay objection and was deemed admissible under Evidence Code section 1280. Exhibit 17, a 2013 CDC Weekly Report, and Exhibit 19, a 2010 WHO booklet on childhood lead poisoning, were also admitted despite objections, with the court finding no abuse of discretion in their admissibility. Exhibit 253, a 2012 resolution from the Santa Clara County Board of Supervisors, was admitted despite objections regarding its foundation and unsigned status. The court's general ruling that documents from public agencies are admissible under Evidence Code section 1280 was upheld without any demonstrated abuse of discretion.

The document acknowledges the Board of Supervisors' recognition of childhood lead poisoning as a significant health issue in Santa Clara County, indicating that this point was not contested. The defendant did not argue on appeal that they were prejudiced by the admission of the Board's resolution, and any potential error in admitting it for all purposes was deemed non-prejudicial. 

Defendants challenged the trial court's allowance of expert testimony based on hearsay documents not admitted into evidence, but most record citations they provided did not contain objections to such testimony. Only one instance was noted where defense counsel objected to an expert's reference to undisclosed documents, which the court overruled. Since this objection pertained to a single question and did not result in prejudice, the court found the claim unpersuasive.

Additionally, defendants claimed prejudice from permitting experts to read hearsay from documents admitted for limited purposes. However, the court had explicitly ruled that the hearsay in these documents was limited to evaluating expert opinions. Defendants primarily objected to the hearsay nature of the documents, with one specific objection noted regarding certain historical documents and a newspaper article, which were also admitted for limited purposes.

The witness confirmed that the documents presented to the Court were foundational for their expert opinion and included representations from other documents. Despite objections from defense counsel on hearsay grounds, the trial court admitted an 1878 medical journal article and a 1919 newspaper article for limited purposes, such as evaluating expert opinions and establishing "notice" if related evidence was presented. The court allowed a "continuing objection" to certain opinion testimony based solely on the referenced documents. 

It was clarified that statements made by experts, when not admitted for their truth, do not constitute hearsay. However, if an expert relies on hearsay as a basis for their opinion and presents it as true to the factfinder, it is treated as hearsay requiring a proper hearsay exception. Therefore, experts cannot present case-specific out-of-court statements as true unless independently proven or fitting an exception. The trial court did not err in allowing expert testimony regarding specific statements from the documents since they were over 30 years old, qualifying them for a hearsay exception under Evidence Code § 1331. Such ancient documents are admissible as proof of the facts stated within if their authors could have testified to those facts.

Authors of the LIA and NPVLA documents, as well as the writer of a related newspaper article, were deemed competent to testify about the contents of their writings, supporting the admissibility of these documents against hearsay objections. The relevance of the documents was linked to the defendants' knowledge at the pertinent time, rather than the truth of the statements contained within. The trial court allowed these documents for a limited purpose, recognizing the distinction between using the documents for truth and for grounding expert opinions. The court's rulings regarding expert references to these documents did not result in prejudicial error.

Defendants claimed the trial court erred in considering hearsay from documents admitted only for limited purposes. However, they did not substantiate their argument with evidence that the court considered such documents for their truth. Specifically, exhibits 18 and 19 were admitted for all purposes under Evidence Code section 1280, negating the limited purpose argument. The court clarified that any hearsay admitted was not for the truth of the matter but to assist in evaluating expert opinions.

Additionally, defendants contended that the trial court improperly denied recross-examination for witnesses. Following redirect examinations, the court consistently ruled against requests for recross, asserting its discretion under Evidence Code section 320. Despite objections from defense attorneys, the court maintained its position and allowed redirect testimony without granting opportunities for recross, which some counsel argued prejudiced their case.

An objection was raised by a party concerning the lack of opportunity for recross-examination of witnesses after redirect examination. The court overruled this objection and subsequently denied requests for recross by both DuPont’s and SWC’s trial counsel. SWC's counsel sought to strike testimony related to an article due to the inability to cross-examine on that topic, but this request was also denied. At the conclusion of the plaintiff's case, SWC's counsel moved to strike all redirect testimony on the basis of not being allowed recross, which was denied.

The defendants argued that the trial court's refusal to allow recross-examination was arbitrary and prevented them from adequately confronting evidence presented during redirect. They referenced Evidence Code sections 772 and 763, asserting these statutes create a right to recross. However, the analysis concluded that neither statute grants such a right; section 763 merely defines recross, and section 772 outlines the order of witness examination phases without establishing rights to any particular phase. The defendants cited an Illinois appellate case, Grundy County Nat. Bank v. Myre, where a blanket ban on recross was deemed impermissible, but the analysis indicated that this case does not establish a general right to recross in all contexts.

A witness testified that a ledger for the farmer's account indicated no fertilizer purchases equivalent to a carload or totaling $18,500, while another ledger showed charges exceeding $20,000 for the same fertilizer type. The farmer was not allowed recross-examination. Citing a federal Confrontation Clause case, the Illinois defendants' argument was deemed inappropriate as the Clause does not apply in civil cases. The referenced case permitted barring recross only if "new matter" was introduced, which the appellate court found was a reversible error in that case. However, the court clarified that at the trial's start, no recross would be permitted, thus requiring counsel to manage objections to redirect. The trial court found that the absence of recross did not prejudice the defense since they had the opportunity to address direct examination issues, and objections to the scope of redirect were made. The court's choice to exclude recross was deemed reasonable given the complexity of the case involving multiple litigants and expert witnesses, aiming to prevent redundant examination and conserve court resources. Additionally, the defendants contested the trial court's time limits and rejection of posttrial deposition designations. The court initially estimated a two-month trial but later limited each side to 30 hours for witness testimony, allowing for extensions upon specific justification.

The court ordered both parties to exchange lists of exhibits and expected witness testimonies, including time estimates for each. By June 24, 2013, it was noted that the plaintiff's estimated time was within the 30-hour limit, while the defense estimated 64.25 hours, prompting the court to require a reduction in the defense's time allocation. On July 8, 2013, the court clarified that deposition testimony would not count against the 30-hour limit unless excessive. It reviewed the parties’ revised lists and confirmed the 30-hour limit was appropriate. On the trial's first day, the court increased the limit to 40 hours per side and rejected the defense's objections. 

During the trial, the defense requested more time after the plaintiff’s expert testimony, which the court allowed for later submission of additional questions but denied extra time requests during the defense's case. The defense completed its case without requesting more time, even after a request for an additional hour for a witness was granted with limits. The trial lasted for 24 court days. Afterward, the defendants submitted 47 binders of deposition designations, of which 22 were admitted into evidence with 25 rejected. The court also set opening statement time limits, allowing 30 minutes for each defendant and a single 30-minute statement for the plaintiff across ten jurisdictions. Subsequent requests for reconsideration by the defense were denied.

Defendants argue that the trial court erred by imposing "unreasonable time limits" on their witness examinations and by rejecting their use of deposition designations and offers of proof to present evidence outside those limits. They believe that Evidence Code section 351 prohibits such limitations. However, the court emphasizes that while all relevant evidence is generally admissible, this does not prevent a trial court from restricting time-consuming presentations. The review of time limits set by a trial court is conducted under an abuse of discretion standard. The court references California Crane School, Inc. v. National Com. for Certification of Crane Operators, which validates the imposition of time limits in civil trials, countering the defendants' misconception that they have unlimited time for witness examination unless objected to. The Evidence Code empowers trial judges to limit evidence presentation if it leads to undue time consumption. Judges are tasked with managing trials efficiently, including actively assessing reasonable time estimates and monitoring trial progress. This responsibility exists regardless of case complexity or the number of witnesses, and judges should consult parties for time estimates before setting limits.

The court must independently assess time estimates provided by the parties, considering various factors such as the pleadings, legal issues, number of witnesses, trial schedule, and the court’s experience with similar cases. Specifying time limits in hours rather than days is beneficial, as it allows the time allocated to include all aspects of a party's case presentation, unaffected by the opposing party's cross-examination duration. Regular updates on time usage should be provided to both parties, ensuring that they are informed of their remaining time. While trials are inherently unpredictable, diligent preparation can mitigate concerns about trial length, suggesting that time limits may be unnecessary for prepared parties. However, in cases where delays or inefficiencies occur, time limits can incentivize diligence and should be enforceable. Time limits may be modified for good cause, and not all cases may require them; effective trial management by the judge can often suffice. The Fifth District’s opinion in Crane emphasizes the importance of establishing reasonable time limits, evaluating party estimates, and maintaining an efficient trial process while ensuring all parties have a fair opportunity to present their cases.

The court found no abuse of discretion regarding the defendants' presentation of excessive materials at trial, which violated previous court directives and included witnesses not listed in trial documents. The court demonstrated considerable patience, ultimately admitting about half of the deposition designations submitted by the defendants, while enforcing time limits and rejecting attempts to introduce additional evidence. 

Defendants argued that the trial court violated their due process rights by shifting the focus from lead pigments to lead paint during the trial. However, the court clarified that the case had always centered on lead paint, as established in prior rulings and the plaintiff's consistent framing of their public nuisance claim. Despite SWC's claims that the case was about pigments, the court denied their motion for judgment, emphasizing that promoting lead pigments used in paints directly relates to liability for public nuisance.

Additionally, defendants contended that they were not given a reasonable opportunity to access and analyze the full RASSCLE database before the trial, but this claim was not elaborated upon in the provided excerpt.

Defendants argue that earlier access to the RASSCLE data would have countered the plaintiffs' reliance on outdated national studies regarding elevated blood lead levels (BLLs). RASSCLE, the Response and Surveillance System for Childhood Lead Exposure, was developed by the California Lead Poisoning Prevention Branch (CLPPB) and consists of two databases: RASSCLE I (closed around 2009) and RASSCLE II (web-based and active from 2006). RASSCLE gathers blood lead testing results from California commercial laboratories, primarily focusing on children tested due to state regulations mandating testing at ages one and two for those receiving government assistance or living in high-risk housing conditions.

Approximately 700,000 tests are conducted annually, though only about 75% of required tests are completed, with Kaiser members being overrepresented among those tested. The databases include cases with BLLs at or above 10 mcg/dL, but only about 30% of children in the targeted jurisdictions are represented. Defendants noted that they were missing data from Monterey County due to password access issues.

With the trial set for July 15, 2013, the RASSCLE II database was provided to the defendants on June 21, 2013, just three weeks prior to trial. They argued that this data was crucial in demonstrating a significant decline in lead levels and attributing current levels to sources other than lead paint. Although plaintiffs acknowledged the decrease in BLLs, the defendants requested a trial continuance to analyze the data thoroughly, claiming they required eight to ten weeks for this analysis. The court, however, denied the request, suggesting the data could be evaluated quickly. During the trial, the defendants indicated they would receive a report from their experts shortly after the trial commenced, with expert testimony regarding the RASSCLE data beginning on August 15, 2013.

Defendants argue that the trial court abused its discretion by denying their motion for a trial continuance to analyze RASSCLE II data provided three weeks before trial. The court possesses significant discretion in granting continuances, and its decision will stand unless a clear abuse of discretion is shown. In this case, the court determined that defendants did not require two months for expert analysis of the data, as the trial had not commenced when the data was received, and the defense's claim of needing eight weeks for analysis was questionable. The defense experts managed to analyze the data in under a month, and no witnesses were presented until nearly two months after the data was received, indicating no abuse of discretion occurred.

Additionally, defendants claimed that pre-trial rulings prohibiting discovery violated their due process rights by preventing them from defending against allegations regarding the condition of nuisance properties. They asserted the court quashed their attempts to inspect these properties and to gather information from property owners and decision-makers. The defendants attempted to link their case to a Supreme Court ruling in Shelby County v. Holder regarding outdated data, suggesting RASSCLE data would provide updated information. However, the RASSCLE data was not randomly compiled and did not cover the entire targeted population, rendering it non-comparable to the studies used by the plaintiff. Ultimately, since defendants had access to the RASSCLE data in time for their experts to analyze it before trial, they could not demonstrate prejudice from the court's decision to deny a trial delay. Less than a month before trial, defendants filed an ex parte motion to serve inspection notices and depositions of landlords based on the RASSCLE information.

Defendants argued for the approval of their motion, asserting the necessity of inspecting certain properties and conducting landlord depositions to gather critical evidence on several issues: (a) the existence of lead paint, which plaintiffs allege but have not proven; (b) the condition of any lead paint and related landlord violations of California Health and Safety Code sections 17920.10 and 17980 et seq., which mandate the abatement of lead hazards; (c) the sources of elevated blood lead levels (EBLLs), including potential alternative lead sources; and (d) the impact of remediation efforts on blood lead levels and their effectiveness. They contended that any ongoing issues stem from inadequate maintenance rather than the mere presence of lead.

Defendants acknowledged practical limitations concerning the number of residences that could be inspected and landlords deposed, particularly given the timeline between receiving case files and the trial date. They identified specific San Mateo residences with unremediated lead hazards, despite multiple orders from the California Lead Poisoning Prevention Program (CLPPP). 

The court denied their ex parte motion, and defendants claimed this denial constituted a violation of due process. They cited a California Supreme Court case, Rutherford v. Owens-Illinois, Inc., but provided no clear connection between the citation and their argument regarding property inspection. Rutherford involved a strict products liability case about asbestos, specifically addressing causation instruction errors, and the page referenced does not directly support defendants' claims. Defendants' main contention was that the court erred in denying their motion to serve inspection notices on third parties. The standard for reviewing discovery orders is abuse of discretion, and defendants failed to cite relevant statutory authority to justify their request for inspection notices, which hinges on adherence to procedural guidelines set forth in California Code of Civil Procedure section 2031.

Documents can be obtained without the other party’s cooperation in certain circumstances, such as through the Public Records Act, from third parties, or via investigations and online searches. Publicly accessible property can be examined lawfully without invoking section 2031. The defendants failed to identify any authority for the trial court's decision to grant inspection notices to third parties, leading to a conclusion that the trial court did not abuse its discretion in denying the application.

Regarding spoliation, defendants argued they were unfairly denied a fair trial due to the plaintiff's destruction of evidence. They cited two instances: the alteration of a statement by Monterey County about the sources of elevated blood lead levels (BLLs) and the shredding of lead test reports by San Francisco that did not show BLLs of 5 mcg/dL or higher. However, evidence from the trial indicated that the removed statement was acknowledged, and the results from the shredded reports were still available in state records. Additionally, claims about destroyed emails and an inaccessible database did not demonstrate intentional destruction or significant loss of evidence, as relevant case files and a newer database were available.

Defendants also contended that their due process rights were violated by the trial court's appointment of the CLPPB as receiver for abatement funds without an evidentiary hearing. The court has discretion under Code of Civil Procedure section 564, subdivision (b)(3) to appoint receivers in abatement proceedings, which was upheld in City and County of San Francisco v. Daley (1993).

The trial court's order to appoint a receiver for managing abatement funds was deemed necessary and not an abuse of discretion. Defendants were mandated to deposit funds into a designated abatement fund, which the receiver would disburse in response to grant applications from specified jurisdictions. The court appointed the CLPPB to administer the fund, but the selection was contested. Defendants argued that the CLPPB is a nonparty over which the court lacks jurisdiction, has not consented to act as a receiver, and is not impartial due to its affiliations. According to Code of Civil Procedure § 566, a receiver must be impartial and cannot be a party or associated with a party without consent. The trial court did not conduct an evidentiary hearing on the CLPPB's qualifications, leaving no evidence of its consent or impartiality. Consequently, the court will hold an evidentiary hearing regarding the receiver's appointment upon remand.

Additionally, SWC claimed the trial court erred by not issuing a declaratory judgment on its cross-claim, which sought to establish that intact lead paint not deemed a hazard under specific Health and Safety Codes is not a public nuisance. SWC also argued that property owners with lead hazards are solely responsible for any public nuisance or abatement. The trial court rejected SWC’s cross-claim, as it contradicted the judgment favoring the plaintiff.

The trial court ruled that intact lead paint on friction surfaces in residential properties constitutes a public nuisance, holding the defendants accountable for both the creation and abatement of such nuisances across ten jurisdictions. This decision was backed by substantial evidence, leading to the rejection of SWC’s cross-claim for declaratory relief. ConAgra contested its liability as a successor to Fuller, arguing that the court's finding lacked substantial evidence. However, the court determined that ConAgra inherited Fuller’s liabilities due to a series of mergers and consolidations, stating that such a ruling was necessary to prevent injustice. The standard for corporate liability transfer requires either an express assumption of liabilities, a merger, continuity of the purchasing corporation, or fraudulent asset transfer. Evidence presented indicated that Fuller merged into Hunt Foods in 1962 and subsequently into Norton Simon, which eventually became ConAgra. This chain of mergers was deemed sufficient to establish ConAgra’s liability. ConAgra's challenge to the credibility of the evidence relied upon by the plaintiff was dismissed, as a trial court can reject uncontradicted evidence if not deemed credible. ConAgra’s claims regarding a subsidiary relationship with W.P. Fuller Paint Company were found unsubstantiated based on the evidence presented.

Evidence presented did not prove that “W.P. 80 Fuller Paint Company” was a wholly-owned subsidiary of Hunt. ConAgra asserted that undisputed evidence showed all of Fuller’s liabilities were transferred to “W.P. Fuller Paint Company” in 1967, relying on purported minutes from a December 1964 board meeting. These minutes allegedly indicated that Fuller’s paint business, along with its liabilities, was accepted by W.P. Fuller Paint Company in exchange for shares and notes. However, the origin of these minutes was uncertain, and even if considered valid, they did not conclusively demonstrate that all of Fuller’s liabilities were transferred. The minutes suggested an offer from Hunt to transfer certain assets, but lacked specificity about the liabilities involved, did not detail the terms of the offer, nor confirmed any communication of acceptance to Hunt or the completion of the asset transfer. The trial court was justified in rejecting ConAgra’s interpretations of the minutes. Additionally, ConAgra claimed that Hunt sold Fuller’s paint business to O’Brien in 1967, citing deposition testimony from a former employee; however, the trial court could have reasonably dismissed this testimony as irrelevant, noting that Norton-Simon was established in 1968.

A 1967 newspaper article reported on Hunt's sale of its wholly owned subsidiary, Fuller, to O’Brien, though the transaction's specific details were not disclosed. Even if the article is considered credible, it does not demonstrate that Fuller’s liabilities were transferred to O’Brien, as established in the case of Ray. The purchaser (O’Brien) does not assume liabilities unless there is an express or implied agreement, a consolidation or merger occurs, the purchasing corporation is a continuation of the seller, or the asset transfer is fraudulent. ConAgra failed to present evidence supporting any of these conditions. Although ConAgra argued for the application of the "product line exception" to the Ray test, it did not provide evidentiary support for its applicability outside strict products liability contexts, which has been limited by case law. The trial court’s finding that Fuller’s liabilities flowed from Hunt to Norton-Simon and then to ConAgra was upheld, establishing ConAgra as Fuller’s successor. The document also mentions that defendants referenced four cases from other jurisdictions where public nuisance claims against lead paint manufacturers were dismissed. In one case, City of Chicago v. American Cyanamid Co., the court upheld the dismissal due to the plaintiff's failure to adequately allege proximate cause and ruled out theories of market share or collective liability.

The court ruled that Chicago's public nuisance claim failed because it did not allege that the defendants controlled the property associated with the nuisance. In City of St. Louis v. Benjamin Moore Co., the trial court granted summary judgment to defendants as the city could not establish causation without identifying the specific lead paint manufacturer involved. The Missouri Supreme Court determined that actual causation requires identification of the defendant responsible for the product, rejecting "market-share liability" as inconsistent with Missouri law. 

In a New Jersey case, the Supreme Court dismissed a public nuisance claim against lead paint manufacturers, noting that the New Jersey Legislature designated interior residential lead paint as a public nuisance, assigning responsibility to property owners rather than manufacturers. The court concluded that only a tortfeasor in control of the nuisance could be held liable, and since the manufacturers did not control the lead paint, they were not liable. Additionally, the municipalities' claim for damages rather than abatement was barred, as public entities cannot seek damages in public nuisance actions without special injury. The court also stated that claims based on failure to warn were more appropriately categorized under products liability than public nuisance.

In State v. Lead Industries Ass’n, the Rhode Island Supreme Court held that a public nuisance action against former lead pigment manufacturers should be dismissed because it lacked allegations of interference with a public right and control over the pigment. It emphasized that public nuisance requires interference that affects the community's rights to shared resources, not just individual property use. The complaint was deemed inadequate for failing to assert facts showing the defendants controlled the lead pigment when it harmed children in Rhode Island.

The cases from Rhode Island, Chicago, New Jersey, and St. Louis are distinguishable from the current case due to their procedural posture and the nature of evidence considered. Only the Rhode Island case underwent a full trial, while the others were dismissed at the pleading stage or on summary judgment. The evidence in the current case substantiated a public nuisance action, which might not have been evident from the pleadings in those jurisdictions. The Rhode Island and Chicago cases were focused on abatement rather than damages; however, the legal principles governing public nuisance actions differ significantly. In California, control of the nuisance is not a prerequisite for establishing liability, contrary to the rationale used in the Chicago and New Jersey cases, which hinged on lack of control and specific state laws. The New Jersey decision also conflated public nuisance with products liability, while California law clearly delineates these concepts. The liability for public nuisance in this case arises from defendants’ affirmative promotion of lead paint, distinct from mere manufacturing or warnings regarding its hazards. The Rhode Island court's conclusions regarding control and public rights do not align with California statutes, leading to a rejection of the defendants' reliance on these out-of-state cases. Additionally, seven amicus briefs have been submitted in relation to the case.

Amici groups have filed briefs in support of both defendants and plaintiffs in a case concerning lead paint manufacturers' liability for public nuisance. The Civil Justice Association (CJA) argues against the trial court's judgment, stating it contradicts rulings from other states and critiques in journal articles. CJA asserts that California law should not be influenced by external courts or academic opinions and claims the case should be dismissed as a non-justiciable political question, a point previously rejected by the court. CJA also disputes the trial court's recognition of a "public right" and challenges the sufficiency of evidence supporting causation, though the court has previously addressed these issues.

The Pacific Legal Foundation (PLF) contends that applying public nuisance law violates due process and public policy, arguing that the defendants' conduct was lawful at the time. The court rejects PLF's claims, clarifying that the defendants were found liable for promoting lead paint for residential use despite knowing the risks to children. The court emphasizes that the creation of a public nuisance has been unlawful in California since the 1800s, thus dispelling PLF's due process concerns. PLF's assertion that the federal vagueness doctrine applies to civil liability for public nuisance is also dismissed, as its cited examples pertain primarily to criminal law.

PLF fails to identify any civil case where a court refused a public nuisance abatement action due to an unconstitutionally vague statute unrelated to speech suppression. The court rejects PLF's due process argument, asserting that the trial court's finding of "unreasonableness" was appropriate. The trial court established that the defendants were liable for creating a public nuisance by promoting lead paint for residential use, fully aware of the risks involved, rather than declaring lead paint itself a public nuisance. The court's previous ruling in Santa Clara I supports that such conduct is deemed unreasonable under public nuisance law.

PLF's assertion that the trial court's judgment improperly broadens the definition of "public right" is mistaken; the judgment addresses remediation of hazardous conditions caused by defendants, not individual injuries. PLF's claim that the ruling affects property owners' rights without notice is unfounded, as the abatement plan allows voluntary participation. The list of properties not enrolled in the plan does not significantly impact property rights, since properties built before 1978 are already presumed to contain lead paint, providing no new detriment to owners.

The court clarifies that the abatement order does not declare individual properties a nuisance, but rather mandates defendants to remediate the public nuisance they created, with specific properties to be identified later in the abatement process. PLF’s arguments referencing public policy trends and out-of-state cases rejecting public nuisance liability for lead paint are irrelevant, as they do not apply California public nuisance law.

Engaging in practices deemed risky by plaintiffs does not constitute a public nuisance without a causal link to threatened harm. In this case, no causal connection exists between the defendants' actions and illegal firearm acquisition or firearm-related injuries. Unlike previous cases, the defendants knowingly promoted lead paint for residential use, creating a serious risk to children. Evidence supports the trial court's finding of causation for most claims. Public policy arguments against recognizing public nuisance claims, based on fear of liability for lawful products, do not apply here. Manufacturers promoting hazardous products may be held accountable under public nuisance law for necessary remediations. Arguments from NFIB regarding required knowledge and causation have been addressed and rejected, and its call to reconsider prior rulings on public nuisance in similar contexts is declined. Amici supporting the plaintiff argue for urgent public nuisance abatement due to lead poisoning epidemics linked to lead paint in housing, highlighting the critical need for remediation as a preventive measure against the serious health risks, particularly for economically disadvantaged children who suffer disproportionately from lead exposure.

Concerns raised by amici supporting the plaintiff reinforced the trial court's decision to implement remedial abatement as an equitable remedy due to the defendants' intentional creation of a public nuisance. The judgment has been reversed, and the case is remanded to the trial court with specific instructions: (1) to recalculate the abatement fund to cover only the costs necessary for remediating homes built before 1951, and (2) to conduct an evidentiary hearing concerning the appointment of a suitable receiver. The plaintiff is entitled to recover costs incurred during the appeal. The trial was overseen by Judge James P. Kleinberg at the Santa Clara County Superior Court. Multiple law firms represented both the plaintiff and the defendants, including various county counsel offices and private attorneys.