Legislators introduce bills to force lead paint manufacturers to pay verdict

SACRAMENTO — A group of Democratic lawmakers introduced a package of bills they say will make sure lead paint manufacturers stay on the hook for a major public nuisance verdict finalized last year.

The six bills are designed to counter a voter initiative introduced by the three companies that found themselves on the losing end of $1.15 billion in damages in the case. People v. ConAgra Grocery Products Co. et al., 2017 DJDAR 10795.

A group of 10 cities and counties convinced then-Santa Clara County Superior Court Judge James P. Kleinberg in 2013 that the companies’ past actions created a public nuisance for which they were liable. The money is to go into a lead abatement fund.

A November ruling by the 6th District Court of Appeal narrowed its scope from pre-1981 homes to pre-1951 homes. The state Supreme Court subsequently refused to hear the case.

“Many of us were offended at the idea these paint companies could escape liability by hiring lawyers, lobbyists and political consultants to run to the ballot box,” said Assemblyman David Chiu, D-San Francisco, who is leading the effort. “We want to make sure the paint companies are held liable.”

The companies — ConAgra Brands Inc., NL Industries Inc. and Sherwin-Williams Company — filed a voter initiative in December. The Healthy Homes and Schools Act would call on the state to sell $2 billion in publicly-financed bonds to clean up lead paint and other hazards. Signature gatherers are working to qualify it for the November ballot.

It also states that “lead-based paint … is not a public nuisance.” This would undermine the legal theory used to show liability in the lawsuit.

The companies say it is plaintiffs’ attorneys and now legislators who are hitting homeowners with potentially crippling liability.

“It is clear that the recent court ruling — which saddles millions of California homeowners with the burden of owning a home labeled a public nuisance — is ripe for a legislative solution,” Kendall Klingler, a spokeswoman for the initiative, said in an email.

“While trial lawyers who brought the lawsuit are looking for a way to line their pockets, millions of California homeowners will face increased financial liabilities, decreased property values, forced public disclosures, and the choice of submitting to government inspections or being placed on a public data base,” she added.

Chiu, an attorney, scoffed at the claim that the ruling and the bill package would create peril for homeowners.

On the contrary, he said, the potential liability in question is the paint companies’ own threat to sue homeowners for “proportional liability” if they try to access abatement programs created under the verdict. He said these threats were made in both court filings and arguments.

“The paint companies are trying to deceive Californians into thinking that we should pay for their liability in order to protect homeowners from being sued by those very same paint companies,” Chiu said.

He said other court documents, including company memos dating back decades, show the companies were aware of the hazards of the products at the time they were sold.

Chiu authored AB 2073, which would shield homeowners who participate in abatement programs from lawsuits. Other bills include:

•AB 2074, which would use a “risk contribution” theory to place the burden of proof on manufacturers to prove they did not sell, produce or distribute the paint that are the subject of a homeowner complaint or lawsuit;

•AB 2803, which would define lead paint as a “hazardous substance” under the state superfund law;

•AB 2934, which would appropriate $500,000 and create a new fund to hire and certify lead paint inspectors;

•AB 2995, which would classify lead-based paint in a home as a “physical injury” to the property and change the statute of limitations for a lawsuit to the day property owners became aware of the contamination;

•AB 3009, which would put a lead paint cleanup fee onto all paint sold in California, but only if the Healthy Homes initiative passes.

Not all of the bills were in print on Thursday. Because the deadline to introduce new legislation expired on Feb. 16, each measure is being introduced by inserting new language into existing bills.

The lobbying firm that filed the initiative, Aaron Read & Associates LLC, no longer works for the three paint companies. According to the Secretary of State’s online data base, these relationships were all severed on March 12, though it does not say by whom. The firm did not return a call seeking comment.