Preview
Evan J. Smith, Esquire (SBN 242352)
Ryan P. Cardona, Esquire (SBN 302113)
BRODSKY & SMITH, LLC
9595 Wilshire Blvd., Ste. 900
Beverly Hills, CA 90212 ELECTRONICALLY
Telephone: (877) 534-2590
Facsimile: (310) 247-0160 FILED
Superior Court of California,
County of San Francisco
Attorneys for Plaintiff
09/17/2020
Clerk of the Court
BY: YOLANDA TABO-RAMIREZ
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Case No.: CGC-20-583875
10 PRECILA BALABB0,
NOTICE OF ENTRY OF JUDGMENT
Plaintiff,
Judge: Ethan P. Schulman
12 vs. Dept.: 302
13 CVS PHARMACY, INC., ALMAR
SALES CO., INC.
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Defendant.
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16 PLEASE TAKE NOTICE that the court entered the attached Judgment in the above-
17 captioned matter.
Dated: September 17, 2020 B RODSKY & SMITH, LLC
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20
Evkfi J. Smith (SBN242352)
21 Ryan P. Cardona, Esquire (SBN 302113)
9595 Wilshire Boulevard, Suite 900
22 Beverly Hills, CA 90212
23 Telephone: (877) 534-2590
Facsimile: (310) 247-0160
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Attorneys for Plaintiffs
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-1-
NOTICE OF ENTRY OF JUDGMENT
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gtlpotioi'ollf o1 ~II otola
I Evan Sntith (Bar No, SBN 242352) Gounttt ol tian RVittelseo
BRODSKY 4 SMITH, LI.C.
2 9595 Wilshire Blvd., Ste. 900 SEP,.II,S Nttl)
3
Beverly Hills, CA 90212
Tel: (877) 534-2590
Fax: (310) 247-0160
W ~aAf4 A'..~
CLNK OP TH5 COUR%
t)souiyOIatk
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Attorneys for Plaintiff
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9 SUPERIOR COURT OF THE STATE OF CALIFORNIA
10 COUNTY OI'AN FRANCISCO
PRECILA BALABBO, Case No.: CGC-20-583875
Plaintiff; CONSENT JUDGMENT
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Judge: Ethan P. Schulman
Dept.; 302
CVS PHARMACY, INC ALMAR SAI.ES CO., I-leering Date: September 8, 2020
INC Hearing Time: 9:30 AM
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Reservation Jt:
Defendants.
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CONSENT JUDGMENT
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I. INTIIODUCTION
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).1 The Parties. This Consent Judgment, is cntcrcd into by and between Precila Balabho
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acting on behalf ol'he public intcrcst (hcrcinafter "Plaintiff'r "Balabbo"), and Alrnar Sales Co.,
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Inc. ("Almar" or "Defendant" ) with Balabbo and Del'endant collectively rcfcrrcd to as thc "Parties"
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and each of them as a "Party." 13alabbo is an individual residing in California who seeks to promote
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awareness of exposures to toxic chemicals and improve huntan health by reducing or eliminating
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hazardous substances contained in consumer products. Almar is allcgcd to be a person in the course
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of doing business for pitrposes of Proposition 65, Cal. Health & Safety Code Ssg 25249.5 et set).
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("Pmposition 65")
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1.2 Allegations. Balabbo alleges that Defendant has exposed California consumers to
di(2-ethylhexyl) phthalate ("DEHP") from iLs manufacture, import, distribution and/or sale in
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California of Almar Sales Company Expressions hairband super packs, My Princess Academy
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Backpack Makeup Collections, and other carrying cases and catvyirJg bags of any kind that arc
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either empty or thai contain accessories, including but noi limited to backpacks, knapsacks, toies,
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pouches, or other similar products, without providing a clear and reasonable warning pursuant to
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'3 Proposition 65. DEHP is listed under Proposition 65 as a chemical known to the State of California
'o cause cancer and reproductive harm.
1.3 Notices of Violation/Complaints, On or about March 19, 2019, Balabbo served
Almar, CVS Pharmacy, Inc. ("CVS") and various public enforcement agencies with documents
entitled "60-Day Notice of Violation" pursuant to Health &. Safety Code IJ'25249.7(d) (the "March
NOV"), alleging that Almar and CVS violated Proposition 65 by failing to warn California
consutners that the use of Almar Sales Company Expressions hairband super packs and other
products of a similar type manufactured, imported, distributed and/or sold by Almar and/or CVS
exposed California consumers to DEHP svithout a Proposition 65 warning. Thereafter, on
November 27, 2019, Balabbo served Almar, Homegoods, Inc, ("I-lomegoods") and various public
enforcement agencies with a second set of documents entitled "60-Day Notice
pursuant to Health & Safety Code IJ'25249,7(d) (the "November NOV"), alleging that Almar and
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CONSENT JUDGMENT
ol'iolation"
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I-Iomego'ods violated Proposiiion 65 by failing to warn California consumers tliat the
use of My
Princess Academy Backpack Makeup Collections and other products of a similar
type
manufactured, imported, distributed and/or sold by Almar and/or Homegoods exposed California
consumers to DBHP without a Proposition 65 warning. The iiiarch NOV and the November NOV
are collectively referred to herein as the "Notices." 'I'o the best ol'the Parties'nowledge, no public
enforcer has brought and is diligently prosecuting the claims alleged in the Notices. On March 25,
2020, Balabbo filed a complaint (ihe "Complaint" ) based on the March Notice. On July 10, 202(k
13alabbo filed a first amended complaint (the "Amended Complaint" ) based on the Notices and for
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the purposes of identifying Almar as a defendant. The Complaint and Amended Complaint urc
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collectively referred to herein as, the "Action."
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1.4 For purposes ol'this Consent Judgment only, the Parties stipulate that this Court has
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jurisdiction over Defendant as to the allegations contained in the Action, that venue is proper in the
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County of San Francisco, and that this Court ltas jurisdiction to approve, enter, and oversee the
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enl'orccmcnt of this Consent Judgment as a full and final binding resolution in the public interest
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of all claims which were or could have been raised in the Action based on the facts alleged therein
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and in the Notices.
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1.5 Defendant enters into this Consent Judgment solely to avoid prolonged and costly
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litigation. Del'cndant denies thc material factual and legal allegations contained in the Notices and
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Action, and maintains that all products that it has manufactured, iinported, sold, and/or distributed
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in California, including the types of products covered by thc Notices and Action, lieve been and are
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in compliance with all laws, and are completely safe I'or their intended use. Nothing in this Consent
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Judgment shall be construed as an admission by Defendant of any fact, finding, issue of law, or
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violation of law; nor shall compliance with this Consent Judgment constitute or be construed as an
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admission by Defendant of any fact, tinding, conclusion, issue of law or violation of law, such
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being specifically denied by Defendant. However, this II 1.5 shall not diminish or otherwise affect
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the Pmties'bligations, responsibilities and duties under this Consent Judgment. Notwithstanding
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the allegations in the Notices and Action, Defendant maintains that it has not knowingly
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CONSEN3 JUDGMENT
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manufactured, or caused to be manul'ectured, any products (including but not limited to thc Covcrcd
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Products deftned below) for sale in Calil'omia in violation of Proposition 65,
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2. DKFIN ITIONS
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2.1 Covered Products. The term "Covered Products" means all Almar carrying cases
and carrying bags of any kind that are either empty or that contain accessories, including but not
limited to backpacks, knapsacks, totes, pouches, or other similar products manufactured by or lor
Almar, or imported, sold or distributed by Almar, under any Almar tradename such as
"Expressions," "My Princess Expressions," or "My Princess Academy," including but not limited
to Almar Sales Company Expressions hairband super packs and My Princess Academy Backpack
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Makeup Collections including, but not limited to, UPC Nos. 024576830656 and 024576764586.
2.2 Effective Date. Thc term "Effective Date" means the date this Consent Judgment is
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entered as a Judgment of the Court.
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3. INJUNCTIVE RBLIER: REI'ORMVLATION OR WARNINGS
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3.1 Reformulation of Covcrcd Products. As of the Effective Date, and continuin ~
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thereafter, Covered Products that Almar manufactures, imports, distributes, sells, or offers for sale
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in California shaB either be: (I) Reformulated Products pursuant to IJ 3.2, below; or (2) labeled with
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a clear and reasonable warning pursuant to tent'I 3.3 and 3,4, below. For purposes ol'his Consent
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Judgment, a "Reformulated Product" is a Covered Product that is in compliance with the
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reformulation standard set forth in ss 3.2 below. 'fhe warning requirements set forth in '3.3
sstI and
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3.4 shall not apply to any Reformulated Product.
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3.2 Reformulation Standard. "Reformulated Products" shall mean Covered Products
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tltat contain concentrations less than or equal to 0,1% (1,000 parts pcr million ("ppm")) each of
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DEHP, dibutyl phthalate ("DBP"), diisononyl phthalate ("DINP"), diisodecyl phthalate ("DIDP"),
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di-n-hexyl phthalate ("DnHP"), and butyl benzyl phthalate ("BBP"), in any accessible components
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when analyzed pursuant to U.S. Environmental Protection Agency testing methodologies 3580A
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and 8270C, or other methodologies utilizetl by federal or state government agencies for the purpose
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of determining the phthalate content in a solid substance.
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CONSIJNT JUDOMFNT
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3,3 Clear ilnd Reasonable Warnings. As of ihe Effective Date, and continuing
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thcrcaftcr, a clear and reasoniible warning as set forth in this 2)tJ 3,3 and 3.4 must be provided 1'r,
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all Covered Products that Del'endant manufacturers,I imports, distributes, sells, or offers for sale in '
California that are not Reionnulated Products. There shall be no obligation for Defendant to
provide a warning for any Covered Products that are not Reformulated Products that are
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manufactured or otherwise enter the stream of commerce prior to the Effective Date. The warning
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shall consist of either the Warning or Alternative Warning described in tJ( 3.3(a) or (h),
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respectively:
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(a) Warning. The "Warning" shall consist of'one of the following statements:
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le [California Proposition 65] WARNING: This product can expose you to
chcinicals including di(2-ethylhexyl) phthalate (DEHP), which are known to the
State of California (o cause cancer and birth defects or other reproductive harm. Por
12 more information go to www.P63Warninus.ca:avv,
13 (b) Alternative Warning: Ahnar may, but is not required to, use the altcrnativc short-
14 form warning as set forth in this g 3.3(b) ("Altcrnativc Warning" ) as follows;
15 k [California Proposition 65] WARNING: Cancer and Reproductive I-larm
16 www,P65Warnings.ca.gov.
17 3.4 A Warning or Alternative Warning provided pursuant to I] 3.3 must print thc word
18 "WARNING." in all capital letters and in bold font, followed by a colon, The warning symbol to
19 the )eII of the word "WARNING:" must be a black exclamation point in a yellow equilateral
20 triangle with a black outline, except that if the sign or label for the Covered Product does not usc
21 the color yellow, the symbol may be in black and white. The syinbol must bc in a size no smaller
22 than the height of the word WARNING:". Language in brackets above is optional. The warning
23 shall be affixed to or printed on the Covered Product's packaging, its container, instruction bool&let,
24 or labeling, or on a placard, shelf tag, sign or electronic device or automatic process, displayed with
25 such conspicuousness, as compared with other words, statements, or designs, as to render it likely
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27 A warning may be contained in the same section of the packaging or labeling that states other safety
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CONSENT JUOOMENT
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warnings, il'any, concerning the use of the Covered Product, and shall be at least the same sine as
those other safety warnings.
lf Almar sells Covered Products via its internet website to customers located in Calit'ornia,
the warning requirements of this section shall bc satisfied if one of the foregoing warnings ol'
clearly marked hyperlink to the warning using the word(s) "[California Proposition 65]
WARNING" (language in brackets optional) appears either: (a) on the same web piige on which a
Covered Product is displayed and/or described; (b) on the saine web page as the price for the
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Covered Product; or (c) on one or more web pages displayed to a purchaser prior to purchase during
the checkout process. Alternatively, a symbol consisting of a black exclamation point in a yellow
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or white equilateral triangle may appear adjacent to or immediately following the display,
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description, price, or checkout listing of the Covered Product, if the warning statement appears
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elsewhere on the same web page in a manner that clearly associates it with the product(s) to which
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the warning applies,
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3.5 Compliance with Warning Regulations. Dcfcndant shall be deemed to bc in
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compliance with this Consent Judgment for Covered Products that are not Reformulated Products
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by either adhering to IJ fi 3.3 and 3.4 of this Consent Judgment, or by complying with any warning
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requirements adopted by the State ot'alifornia's Office of Environmental Health I-Iazard
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Assessment ("OEHHA") after the Effective Date.
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4. MONETARY TERMS
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4.1 Civil Penalty. In complete resolution of any claim for monetary relief of any kind
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related to the Notices, thc Action, and this Consent Judgment (except Plaintift's attorney's fccs as
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set fotsh in Section 4.2 below), Almar shall pay a total of $ 5,000 as a Civil Penalty pursuant to
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I-lealth and Safety Code section 25249,7(b), with 75% of the Civg Penalty remitted to OEHI IA and
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the remaining 25% of the Civil Penalty remitted to 13alabbo, as provided by California Health tk
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Safety Code tj 25249.12.
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4.1.1 Within ten (10) days of the Effective Date, Almar shall send two scparatc
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checks for the Civil Penalty payment to: (a) "OEHI IA" in the amount of $ 3,750; and (b)
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CONSENT JUDGMENT
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"Brodsky dk Smith, LLC in Trust for Ba!abbo" in thc amount of $ 1,250. Payincnt owed to
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Balabbo pursuant to this Section shall be delivered to the following payment address:
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Evan J. Smith, Esquire
4 Brodsky k. Smith, LLC
Two Bala Plaza, Suite 510
5 Bala Cynwyd, PA 19004
6 Payntcn( owed io QEHHA (EIN: 68-0284486) pursuant to this Section shall be delivered directly
7 to OEHHA (Memo Line "Prop 65 Penalties" ) at one of the following address(cs);
8 For United States Postal Service Delivery:
Milt eGyurica
Fiscal Operations Branch Chief
10 Office of Environmental I-Iealth I-Iazard Assessmtuit
P.O. Box 4010
Saoramento, CA 95812-4010
12 For Non-United States Postal Service Delivery:
13 Mike Gyurics
Fiscal Operations Branch Chief
14 Office of Environmental Health Hazard Assessment
1001 I Street
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Sacramento, CA 95814
16 A copy of the check payable to OFHHA shall be mailed or emailed to Brodsky dt Smith, LLC at
the address set foith above as proof of payment to OEI-I I IA.
18 4.2 Attorneys'ees. Within ten (10) days of the Effective Date, Almar shall send a
check for a total of $ 40,000 made payable to Brodsky k. Smith, LLC ("Brodsky Smith" ) as
20 complete reimbursement and resolution of any claim for Balabbo's attorneys'ees and costs or
21 other expenses of any kind incurred in connection with the Notices, the Action, and this Consent
.Iudgment, as a result of activities including but not limited to investigating, testing, bringing ibis
matter to Almar's attention, litigating, negotiating, and obtaining judicial approval of this Consent
24 Judgment in thc public interest pursuant to Code of'Civil Procedure, tj 1021,5, and any other statute
or common law of similar effect.
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CONSENT JIJDGMENT
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5. I'UBLIC RELEASE OF ALL CLAIIVIS
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5.1 This Consent Judgment is a full, final, and binding resolution between Bahibho
acting on her own behalf, and on behalf of the public interest, and Almar, anil its parents.
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shareholders, members, directors, officers lriallagcrs, employees, representatives, agcnis,
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attorneys, divisions, subdivisions, subsidiaries, partners, sister companies, and affiliates, aml tlteir
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predecessors, successors and assigns (" Defendant Releasees"), and all entiiies liom whom ihcy
obtain and io whom they directly or indirectly distribute or scil Covered Products, including but
not liinited to manufacturers, suppliers, distributors, wholesalers, customers, licensors, licensees,
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retailers (including but not limited to CVS, 1lomcgoods, Party City Cot Fora(ion, Amscan Inc., Ross
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Stores, Inc., the TJX Companies, Inc., and each of their affiliates), fianchisees, and cooperative
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members, and each of'heir parents, shareholders, members, di'rectors, officers, inanagers,
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employees, representatives, agents, attorneys, divisions, subdivisions, subsidiaries, partners, sisier
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companies, and affiliates, and their predecessors, successors and assigns (collectively "Rclcasces").
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of all claims for actual or alleged violations of Proposition 65 based on exposure to DBI-IP from
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Covered Products as set forth in the Notices and the Action, with respect to any Covered Products
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manufactured, imported, distributed, or sold by Almar prior to the Btfeciive Date. This Conseni
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,ludgment shall have preclusive effect such that no other person or entity, whether purporting io act
in his, her, or its interests, or in the public interest, shall be permitted to pursue and/or take any
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action with respect io any violation of Proposition 65 that was alleged in the Notices aml/or the
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Action, or that could have been brought pursuant to the Notices and/or Action against Almar, thc
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Defendant Rcleasees, and/or the Releasees for Covered Products manufactured, imported.
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distributed, or sold through the Fl'fectivc Date of this Consent Judgment (" Proposition 65 Claims" ).
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Coinpliance with the terms of this Consent Judgment constitutes compliance with Proposition 65
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regarding actual or alleged DF HP, DINP, DBP, BBP, DIDP, and DnHP in the Coveretl Products.
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5.2 In addition to the foregoing, Balabbo, on behalf of herself, her past and curreni
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agents, representatives, attomcys, and successors and/or assignees, rnid Jior in her representaiivc
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capacity, hereby waives all rights to institute or participate in, directly or indirectly, any form of
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CONSENT JUDGMENT
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legal action and rclcases Al mar, Defendant Releasees, and Releasces, fi'om any and all mtllll1cl') I'
actions, causes of action, claims, demands, rights, suits, obligations, debts, contracts, agreenicnis,
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promises, liabilities, dmnages, penaltics, charges, losses, costs, expenses, and attorneys'ees, ol
any nature whatsoever, known or unknown, in law or equity, lixed or contingent, now or in ihe
future, with respect to any actus) or alleged violations of Proposition 65 related to or arising I'roi1'1
Covered Products manufactured, imported, distributed, or sold by'Almar, Defendant Rclcasces or
Releasees. With tespect to the foregoing waivers and rdeases in this paragraph, Balabbo hereby
specifically waives any and all rights and benefits which shc now has, or in the future may have,
conferred by virtue of thc provisions of II 1542 of thc California Civil Code, which provides as
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follows:
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A GENERAL RELEASE DOES NOT EXTEND 'I'0 CI.AIMS 'I'I-IAT THE
12 CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO
EXIST IN HIS OR HER FAVOR AT THE TllvIE OF EXECUTING THE
13 REI,FASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE
MATFRIALLY AFFECTED HIS OR HER SETTLFMENT WJT1.1 Tl-!E
14 DEBTOR OR RELEASED PARTY.
15 Balabbo, on behalf of herself, her past and current agents, representatives, attorneys, and
16 successors and/or assignees, expressly waives and relinquishes any and all rights and bcnclits that
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she or they may have under, or that may be conferred upon them by, the provisions of Cali 1'ornia
Civil Code II 1542 as well as under any other state or fcdcral stauite or common law principle of
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similar effect, to thc fullest extent they may lawfully waive such rights or benelits pertaining to
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the released matters.
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ol'3 6.
5.3
INTEGILikTION
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Almar waives any and all claims against Balabbo, her attomcys and other
representatives, for any and all actions taken nr statements made (or those that could have heen
taken or made) by Balabbo and her attorneys and other representatives, whether in the course
investigating claims or otherwise seeking enforcement of Proposition 65 against it in this matter,
and/or with respect to Covered Products.
'fhis Consent Judgment contains the sole and entire agreement of'he Parties and
any and all prior negotiations and understandings related hereto shall bc deemed to have been
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CONSENT JUDGMENT
merged within it. No representations or terms of agreeinen( other than those contained herein exist
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or have been made by any Party with respect to the other Party or the subject matter hereof.
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7. GOVERNING LAtiV
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7.1 The terms of this Consent Judgment shall be governed by thc laws of the State oi
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California and apply within thc State of California. In the event that Proposition 65 is repealed oi
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is otherwise rendered inapplicable by reason of Iaw generally, or as to Covered Products, then
Defendant shall have no further obligations pursuant to this Consent Judgment with respect to, and
to the extent that, Covered Products are so affected.
8. NOTICES
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8.! Unless specified herein, all correspondence and notices required to be provided
pursuant to this Consent Judgnient shall be in writing and personally delivered or sent by: (I ) first-
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class, registered or certified mail, return receipt requested; or (2) ovetnight courier on any Party by
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thc other Party at the following addresses:
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For Defendant:
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Almar & Bros., Inc.
16 c/o President/CEO
320 5'" Avenue
17 New York, NY 100018
18 With copies to:
19 Jeffrey Dweck, Esq.
The Law Firm of Jeffrey S. Dwcck, P.C,
20 43 West 33rd Street, Suite 304
New York, New York 10001
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And
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J. Robert Maxwell
23 ROGERS JOSEPH O'DONNEL
A Professional Law Coiporation
24 311 California Street, 10th Fl.
San Francisco, CA 94104
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And
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I'or Balabbo:
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Evan Smith
28 Brodsky & Smith, LLC
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CONSENTJUDGMENT
slr91al
I 9595 Wilshire Blvd., Ste. 900
Beverly Ilills, CA 90212
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A)ty Party, from time to time, nlay specify in writing to the other Party a change of address to
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which all notices and other communications shall be sent.
9. COUNTEIIPARTFi: FACSIMII.E SIGNATURES
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9.1 This Consent Judgment may be executed in countcrparts and by facsimile or pdf,
each of which shall be deemed an original, and all ol'which, when taken together, shall constitute
one and the same document.
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10. COMI'LIANCE WITII IIEALTII 8c SAirl. I'Y COI)E g 25249.7tt)/OOUR1'
APPROVAL
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I O.l Balabbo agrees to comply with the requirements set fotlh in California Ilcalth &
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Safety Code Ii 25249.7(f) and to promptly bring a Motion for Approval of this Consent Judgment.
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Defendant agrees it shall support approval of such Motion,
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10.2 This Consent Jud g ment shall not be effecti ve until it is approved and entered by the
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Court and shall be null and void if, for any reason, it is not approved by the Court. In such case, the
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Patlies agree to meet and confer in good faith on how to proceed and if such agreement is not
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reached within 30 days, the case shall proceed on its norma) course.
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11.
I'his
10.3
SEVERABILITY
11.1
If the Court approves this Consent Judgment and is reversed or vacated by an
appellate court, the Parties shall meet and confer in good faith as to whether to modify the terms o
Consent Judgment. If the Parties do not jointly agree on a course of action to take, the case
shall proceed on its normal course on the trial court's calendar.
If, subsequent to the Court's approval and entry of this Consent.ludgment as a
judgment, any provision of this Consent Jutlgmcnt is held by a court to bc unenforccable, the
validity of the retraining provisions shall not be adversely affected.
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12. .IOINT I'REPARATION
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12.1 The Parties have jointly participated in the preparation of (his Consent Judgment
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and this Consent Judgment is thc result of the joint efforts of the Parties. Accordingly, any
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CONSENT JUDGMENT
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uncertainty or ambiguity existing in this Consent Judgment shall not be interpreted against any
Party as a result of the manner of the preparation of this Consent Judgment. Each Party to this
Consent Judgment agrees that any statute or rulc of construction providing that ambiguities are ta
be resolved against the drafting Party shall not be employed in thc interpretation of this Consent
Judgment and, in this regard, the Parties hereby waive Calif'ornia Civil Code tj 1654.
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I3 MODIFICATION
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13.1 This Consent .ludgment may be modified only by further stipulation of the Parties
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and the approval of the Court or upon the granting of a motion brought to the Court by either Party
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ATTORNEY'S FEES
14.1 fhc only persons who may cnforcc this Consent Judgment are the Patties hereto.
No Party shall bring a motion to enforce the terms of this Consent Judgment without first providing
notice to the other party and meeting and conferring in good faith about the alleged violation for a
period of at least 30 days. A Party who unsuccessfully brings or contests an action arising out of
this Consent Judgment shall be required ta pay the prevailing Party's reasonable attorney's fees
and costs. Nothing in this Section shall preclude a Fairy from seeking an award af sanctions
pursuant to law.
RETENTION OF,IllRISDICTION
15.1 This Court shall retain jurisdiction of this matter to implement or modify thc
Consent Judgment.
IREMAINDER OF PAGE JNTENTIONALL LEFT IJLANK]
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CONSENT JUDGMENT
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16 AUTIIORIZATI ON
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16.1 The undersigned warrant that they are authorized to exccutc this Consent Jndgment
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on behalf of their respective Parties and have read, understood, and agree to all of the terms and
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conditions of this Consent Judgment, and certify that each is fully authorized by thc Party he or she
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represents to execute the Consent Judgment on behalf of thc Party represented and legally bind tha(
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Party. Except as explicitly provided'herein each Party is to bear its own attorney's fees and costs.
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8 AGREED TO,'GREED TO:
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Date; 5/(9/2020 Date; 6/24/202C
gf2tarlt/I'i rp, tsL .
PRECCILA.! ALABHO ALMAR SALLS CO., INC,
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14 IT IS SO ORDERS'D ADJUDGED AND DECREED
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d:+ I'(~Q
gTHAN P St'HULMAN
Ig
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CONSENT JUDGMENT
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PROOF OF SERVICE
COMMONWEALTH OF PENNSYLVANIA )
) ss.
COUNTY OF MONTGOMERY )
I, Evan J. Smith, Esquire, declare:
I am over the age of eighteen years, and not a party to the within action; my California business
address is 9595 Wilshire Blvd., Ste. 900, Beverly Hills, CA 90212 and my Pennsylvania business
address is Two Bala Plaza, Suite 805, Bala Cynwyd, PA 19004. On September 17, 2020, I served
the within documents:
Notice of Entry of Judgment.
by placing the document(s) listed above in a sealed envelope with postage thereon
10 fully prepaid, in the United States mail at Bala Cynwyd, PA, addressed as set
forth below.
Jeffrey Dweck Esq.
12 The Law Firm of Jeffrey S. Dweck, P.C.
43 West 33'treet, Suite 304
13
New York, NY 10001
14
J. Robert Maxwell
15 ROGERS JOSEPH O'DONNEL
A Professional Law Corporation
16 311 California Street, 10'" Fl.
San Francisco, CA 94104
17
18 Attorneys for Defendant
19 by placing the document(s) listed above in a sealed envelope
and affixing a pre-paid air bill, and causing the envelope to be delivered to a
20 agent for delivery.
21 by personally delivering the document(s) listed above to the person(s) at the
addressees) set forth below.
22
23 am readily familiar with my office's practice of collection and processing correspondence for
I
mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day
24 with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of
the party served, service is presumed invalid if postal cancellation date or postage meter date is more
25 than one day after date of deposit for mailing in affidavit.
26 Ideclare under penalty of perjury under the laws of the State of California that the above is true and
correct. Executed on September 17, 2020, at Bala
27
Evan J. Smith, Esquire
-2-
NOTICE OF ENTRY OF JUDGMENT
Preview
Evan J. Smith, Esquire (SBN 242352) Ryan P. Cardona, Esquire (SBN 302113) BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 ELECTRONICALLY Telephone: (877) 534-2590 Facsimile: (310) 247-0160 FILED Superior Court of California, County of San Francisco Attorneys for Plaintiff 09/17/2020 Clerk of the Court BY: YOLANDA TABO-RAMIREZ Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO Case No.: CGC-20-583875 10 PRECILA BALABB0, NOTICE OF ENTRY OF JUDGMENT Plaintiff, Judge: Ethan P. Schulman 12 vs. Dept.: 302 13 CVS PHARMACY, INC., ALMAR SALES CO., INC. 14 Defendant. 15 16 PLEASE TAKE NOTICE that the court entered the attached Judgment in the above- 17 captioned matter. Dated: September 17, 2020 B RODSKY & SMITH, LLC 19 20 Evkfi J. Smith (SBN242352) 21 Ryan P. Cardona, Esquire (SBN 302113) 9595 Wilshire Boulevard, Suite 900 22 Beverly Hills, CA 90212 23 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 24 Attorneys for Plaintiffs 25 26 27 28 -1- NOTICE OF ENTRY OF JUDGMENT I gtlpotioi'ollf o1 ~II otola I Evan Sntith (Bar No, SBN 242352) Gounttt ol tian RVittelseo BRODSKY 4 SMITH, LI.C. 2 9595 Wilshire Blvd., Ste. 900 SEP,.II,S Nttl) 3 Beverly Hills, CA 90212 Tel: (877) 534-2590 Fax: (310) 247-0160 W ~aAf4 A'..~ CLNK OP TH5 COUR% t)souiyOIatk 4 Attorneys for Plaintiff 5 9 SUPERIOR COURT OF THE STATE OF CALIFORNIA 10 COUNTY OI'AN FRANCISCO PRECILA BALABBO, Case No.: CGC-20-583875 Plaintiff; CONSENT JUDGMENT 13 Judge: Ethan P. Schulman Dept.; 302 CVS PHARMACY, INC ALMAR SAI.ES CO., I-leering Date: September 8, 2020 INC Hearing Time: 9:30 AM 15 Reservation Jt: Defendants. 16 17 18 20 21 22 23 24 25 26 27 I CONSENT JUDGMENT slis a i 1 I t I I. INTIIODUCTION 2 ).1 The Parties. This Consent Judgment, is cntcrcd into by and between Precila Balabho 3 acting on behalf ol'he public intcrcst (hcrcinafter "Plaintiff'r "Balabbo"), and Alrnar Sales Co., 4 Inc. ("Almar" or "Defendant" ) with Balabbo and Del'endant collectively rcfcrrcd to as thc "Parties" 5 and each of them as a "Party." 13alabbo is an individual residing in California who seeks to promote 6 awareness of exposures to toxic chemicals and improve huntan health by reducing or eliminating 7 hazardous substances contained in consumer products. Almar is allcgcd to be a person in the course 8 1 of doing business for pitrposes of Proposition 65, Cal. Health & Safety Code Ssg 25249.5 et set). 9 ("Pmposition 65") 10 1.2 Allegations. Balabbo alleges that Defendant has exposed California consumers to di(2-ethylhexyl) phthalate ("DEHP") from iLs manufacture, import, distribution and/or sale in 12 California of Almar Sales Company Expressions hairband super packs, My Princess Academy 13 Backpack Makeup Collections, and other carrying cases and catvyirJg bags of any kind that arc 14 either empty or thai contain accessories, including but noi limited to backpacks, knapsacks, toies, 15 pouches, or other similar products, without providing a clear and reasonable warning pursuant to 16 17 18 19 20 21 22 24 25 26 27 28 '3 Proposition 65. DEHP is listed under Proposition 65 as a chemical known to the State of California 'o cause cancer and reproductive harm. 1.3 Notices of Violation/Complaints, On or about March 19, 2019, Balabbo served Almar, CVS Pharmacy, Inc. ("CVS") and various public enforcement agencies with documents entitled "60-Day Notice of Violation" pursuant to Health &. Safety Code IJ'25249.7(d) (the "March NOV"), alleging that Almar and CVS violated Proposition 65 by failing to warn California consutners that the use of Almar Sales Company Expressions hairband super packs and other products of a similar type manufactured, imported, distributed and/or sold by Almar and/or CVS exposed California consumers to DEHP svithout a Proposition 65 warning. Thereafter, on November 27, 2019, Balabbo served Almar, Homegoods, Inc, ("I-lomegoods") and various public enforcement agencies with a second set of documents entitled "60-Day Notice pursuant to Health & Safety Code IJ'25249,7(d) (the "November NOV"), alleging that Almar and 2 CONSENT JUDGMENT ol'iolation" sl291s I I-Iomego'ods violated Proposiiion 65 by failing to warn California consumers tliat the use of My Princess Academy Backpack Makeup Collections and other products of a similar type manufactured, imported, distributed and/or sold by Almar and/or Homegoods exposed California consumers to DBHP without a Proposition 65 warning. The iiiarch NOV and the November NOV are collectively referred to herein as the "Notices." 'I'o the best ol'the Parties'nowledge, no public enforcer has brought and is diligently prosecuting the claims alleged in the Notices. On March 25, 2020, Balabbo filed a complaint (ihe "Complaint" ) based on the March Notice. On July 10, 202(k 13alabbo filed a first amended complaint (the "Amended Complaint" ) based on the Notices and for 9 the purposes of identifying Almar as a defendant. The Complaint and Amended Complaint urc 10 collectively referred to herein as, the "Action." 11 1.4 For purposes ol'this Consent Judgment only, the Parties stipulate that this Court has 12 jurisdiction over Defendant as to the allegations contained in the Action, that venue is proper in the 13 County of San Francisco, and that this Court ltas jurisdiction to approve, enter, and oversee the 14 enl'orccmcnt of this Consent Judgment as a full and final binding resolution in the public interest 15 of all claims which were or could have been raised in the Action based on the facts alleged therein 16 and in the Notices. 17 1.5 Defendant enters into this Consent Judgment solely to avoid prolonged and costly 18 litigation. Del'cndant denies thc material factual and legal allegations contained in the Notices and 19 Action, and maintains that all products that it has manufactured, iinported, sold, and/or distributed 20 in California, including the types of products covered by thc Notices and Action, lieve been and are 21 in compliance with all laws, and are completely safe I'or their intended use. Nothing in this Consent 22 Judgment shall be construed as an admission by Defendant of any fact, finding, issue of law, or 23 violation of law; nor shall compliance with this Consent Judgment constitute or be construed as an 24 admission by Defendant of any fact, tinding, conclusion, issue of law or violation of law, such 25 being specifically denied by Defendant. However, this II 1.5 shall not diminish or otherwise affect 26 the Pmties'bligations, responsibilities and duties under this Consent Judgment. Notwithstanding 27 the allegations in the Notices and Action, Defendant maintains that it has not knowingly 28 3 CONSEN3 JUDGMENT I manufactured, or caused to be manul'ectured, any products (including but not limited to thc Covcrcd 2 Products deftned below) for sale in Calil'omia in violation of Proposition 65, 3 2. DKFIN ITIONS 4 2.1 Covered Products. The term "Covered Products" means all Almar carrying cases and carrying bags of any kind that are either empty or that contain accessories, including but not limited to backpacks, knapsacks, totes, pouches, or other similar products manufactured by or lor Almar, or imported, sold or distributed by Almar, under any Almar tradename such as "Expressions," "My Princess Expressions," or "My Princess Academy," including but not limited to Almar Sales Company Expressions hairband super packs and My Princess Academy Backpack 10 Makeup Collections including, but not limited to, UPC Nos. 024576830656 and 024576764586. 2.2 Effective Date. Thc term "Effective Date" means the date this Consent Judgment is 12 entered as a Judgment of the Court. 13 3. INJUNCTIVE RBLIER: REI'ORMVLATION OR WARNINGS 14 3.1 Reformulation of Covcrcd Products. As of the Effective Date, and continuin ~ ) 15 thereafter, Covered Products that Almar manufactures, imports, distributes, sells, or offers for sale 16 in California shaB either be: (I) Reformulated Products pursuant to IJ 3.2, below; or (2) labeled with 17 a clear and reasonable warning pursuant to tent'I 3.3 and 3,4, below. For purposes ol'his Consent 18 Judgment, a "Reformulated Product" is a Covered Product that is in compliance with the 19 reformulation standard set forth in ss 3.2 below. 'fhe warning requirements set forth in '3.3 sstI and 20 3.4 shall not apply to any Reformulated Product. 21 3.2 Reformulation Standard. "Reformulated Products" shall mean Covered Products 22 tltat contain concentrations less than or equal to 0,1% (1,000 parts pcr million ("ppm")) each of 23 DEHP, dibutyl phthalate ("DBP"), diisononyl phthalate ("DINP"), diisodecyl phthalate ("DIDP"), 24 di-n-hexyl phthalate ("DnHP"), and butyl benzyl phthalate ("BBP"), in any accessible components 25 when analyzed pursuant to U.S. Environmental Protection Agency testing methodologies 3580A 26 and 8270C, or other methodologies utilizetl by federal or state government agencies for the purpose 27 of determining the phthalate content in a solid substance. 28 4 CONSIJNT JUDOMFNT I Itvla I 1 3,3 Clear ilnd Reasonable Warnings. As of ihe Effective Date, and continuing 2 thcrcaftcr, a clear and reasoniible warning as set forth in this 2)tJ 3,3 and 3.4 must be provided 1'r, 3 I all Covered Products that Del'endant manufacturers,I imports, distributes, sells, or offers for sale in ' California that are not Reionnulated Products. There shall be no obligation for Defendant to provide a warning for any Covered Products that are not Reformulated Products that are 6 manufactured or otherwise enter the stream of commerce prior to the Effective Date. The warning 7 shall consist of either the Warning or Alternative Warning described in tJ( 3.3(a) or (h), 8 respectively: 9 (a) Warning. The "Warning" shall consist of'one of the following statements: jo le [California Proposition 65] WARNING: This product can expose you to chcinicals including di(2-ethylhexyl) phthalate (DEHP), which are known to the State of California (o cause cancer and birth defects or other reproductive harm. Por 12 more information go to www.P63Warninus.ca:avv, 13 (b) Alternative Warning: Ahnar may, but is not required to, use the altcrnativc short- 14 form warning as set forth in this g 3.3(b) ("Altcrnativc Warning" ) as follows; 15 k [California Proposition 65] WARNING: Cancer and Reproductive I-larm 16 www,P65Warnings.ca.gov. 17 3.4 A Warning or Alternative Warning provided pursuant to I] 3.3 must print thc word 18 "WARNING." in all capital letters and in bold font, followed by a colon, The warning symbol to 19 the )eII of the word "WARNING:" must be a black exclamation point in a yellow equilateral 20 triangle with a black outline, except that if the sign or label for the Covered Product does not usc 21 the color yellow, the symbol may be in black and white. The syinbol must bc in a size no smaller 22 than the height of the word WARNING:". Language in brackets above is optional. The warning 23 shall be affixed to or printed on the Covered Product's packaging, its container, instruction bool&let, 24 or labeling, or on a placard, shelf tag, sign or electronic device or automatic process, displayed with 25 such conspicuousness, as compared with other words, statements, or designs, as to render it likely 26 to be read and understood by an ordinary individual under customary conditions of purchase or use. 27 A warning may be contained in the same section of the packaging or labeling that states other safety 5 CONSENT JUOOMENT : livlS 1 warnings, il'any, concerning the use of the Covered Product, and shall be at least the same sine as those other safety warnings. lf Almar sells Covered Products via its internet website to customers located in Calit'ornia, the warning requirements of this section shall bc satisfied if one of the foregoing warnings ol' clearly marked hyperlink to the warning using the word(s) "[California Proposition 65] WARNING" (language in brackets optional) appears either: (a) on the same web piige on which a Covered Product is displayed and/or described; (b) on the saine web page as the price for the 8 Covered Product; or (c) on one or more web pages displayed to a purchaser prior to purchase during the checkout process. Alternatively, a symbol consisting of a black exclamation point in a yellow 10 or white equilateral triangle may appear adjacent to or immediately following the display, ll description, price, or checkout listing of the Covered Product, if the warning statement appears 12 elsewhere on the same web page in a manner that clearly associates it with the product(s) to which 13 the warning applies, 14 3.5 Compliance with Warning Regulations. Dcfcndant shall be deemed to bc in 15 compliance with this Consent Judgment for Covered Products that are not Reformulated Products 16 by either adhering to IJ fi 3.3 and 3.4 of this Consent Judgment, or by complying with any warning 17 requirements adopted by the State ot'alifornia's Office of Environmental Health I-Iazard 18 Assessment ("OEHHA") after the Effective Date. 19 4. MONETARY TERMS 20 4.1 Civil Penalty. In complete resolution of any claim for monetary relief of any kind 21 related to the Notices, thc Action, and this Consent Judgment (except Plaintift's attorney's fccs as 22 set fotsh in Section 4.2 below), Almar shall pay a total of $ 5,000 as a Civil Penalty pursuant to 23 I-lealth and Safety Code section 25249,7(b), with 75% of the Civg Penalty remitted to OEHI IA and 24 the remaining 25% of the Civil Penalty remitted to 13alabbo, as provided by California Health tk 25 Safety Code tj 25249.12. 26 4.1.1 Within ten (10) days of the Effective Date, Almar shall send two scparatc 27 checks for the Civil Penalty payment to: (a) "OEHI IA" in the amount of $ 3,750; and (b) 28 6 CONSENT JUDGMENT nt9ii,l I "Brodsky dk Smith, LLC in Trust for Ba!abbo" in thc amount of $ 1,250. Payincnt owed to 2 Balabbo pursuant to this Section shall be delivered to the following payment address: 3 Evan J. Smith, Esquire 4 Brodsky k. Smith, LLC Two Bala Plaza, Suite 510 5 Bala Cynwyd, PA 19004 6 Payntcn( owed io QEHHA (EIN: 68-0284486) pursuant to this Section shall be delivered directly 7 to OEHHA (Memo Line "Prop 65 Penalties" ) at one of the following address(cs); 8 For United States Postal Service Delivery: Milt eGyurica Fiscal Operations Branch Chief 10 Office of Environmental I-Iealth I-Iazard Assessmtuit P.O. Box 4010 Saoramento, CA 95812-4010 12 For Non-United States Postal Service Delivery: 13 Mike Gyurics Fiscal Operations Branch Chief 14 Office of Environmental Health Hazard Assessment 1001 I Street 15 Sacramento, CA 95814 16 A copy of the check payable to OFHHA shall be mailed or emailed to Brodsky dt Smith, LLC at the address set foith above as proof of payment to OEI-I I IA. 18 4.2 Attorneys'ees. Within ten (10) days of the Effective Date, Almar shall send a check for a total of $ 40,000 made payable to Brodsky k. Smith, LLC ("Brodsky Smith" ) as 20 complete reimbursement and resolution of any claim for Balabbo's attorneys'ees and costs or 21 other expenses of any kind incurred in connection with the Notices, the Action, and this Consent .Iudgment, as a result of activities including but not limited to investigating, testing, bringing ibis matter to Almar's attention, litigating, negotiating, and obtaining judicial approval of this Consent 24 Judgment in thc public interest pursuant to Code of'Civil Procedure, tj 1021,5, and any other statute or common law of similar effect. 26 27 28 7 CONSENT JIJDGMENT . Osis i I 5. I'UBLIC RELEASE OF ALL CLAIIVIS 2 5.1 This Consent Judgment is a full, final, and binding resolution between Bahibho acting on her own behalf, and on behalf of the public interest, and Almar, anil its parents. 4 shareholders, members, directors, officers lriallagcrs, employees, representatives, agcnis, 5 attorneys, divisions, subdivisions, subsidiaries, partners, sister companies, and affiliates, aml tlteir 6 predecessors, successors and assigns (" Defendant Releasees"), and all entiiies liom whom ihcy obtain and io whom they directly or indirectly distribute or scil Covered Products, including but not liinited to manufacturers, suppliers, distributors, wholesalers, customers, licensors, licensees, 9 retailers (including but not limited to CVS, 1lomcgoods, Party City Cot Fora(ion, Amscan Inc., Ross 10 Stores, Inc., the TJX Companies, Inc., and each of their affiliates), fianchisees, and cooperative I) members, and each of'heir parents, shareholders, members, di'rectors, officers, inanagers, 12 employees, representatives, agents, attorneys, divisions, subdivisions, subsidiaries, partners, sisier 13 companies, and affiliates, and their predecessors, successors and assigns (collectively "Rclcasces"). 14 of all claims for actual or alleged violations of Proposition 65 based on exposure to DBI-IP from 15 Covered Products as set forth in the Notices and the Action, with respect to any Covered Products 16 manufactured, imported, distributed, or sold by Almar prior to the Btfeciive Date. This Conseni 17 ,ludgment shall have preclusive effect such that no other person or entity, whether purporting io act in his, her, or its interests, or in the public interest, shall be permitted to pursue and/or take any 19 action with respect io any violation of Proposition 65 that was alleged in the Notices aml/or the 20 Action, or that could have been brought pursuant to the Notices and/or Action against Almar, thc 21 Defendant Rcleasees, and/or the Releasees for Covered Products manufactured, imported. 22 distributed, or sold through the Fl'fectivc Date of this Consent Judgment (" Proposition 65 Claims" ). 23 Coinpliance with the terms of this Consent Judgment constitutes compliance with Proposition 65 24 regarding actual or alleged DF HP, DINP, DBP, BBP, DIDP, and DnHP in the Coveretl Products. 25 5.2 In addition to the foregoing, Balabbo, on behalf of herself, her past and curreni 26 agents, representatives, attomcys, and successors and/or assignees, rnid Jior in her representaiivc 27 capacity, hereby waives all rights to institute or participate in, directly or indirectly, any form of 8 CONSENT JUDGMENT I lis Is.l 1 legal action and rclcases Al mar, Defendant Releasees, and Releasces, fi'om any and all mtllll1cl') I' actions, causes of action, claims, demands, rights, suits, obligations, debts, contracts, agreenicnis, 3 promises, liabilities, dmnages, penaltics, charges, losses, costs, expenses, and attorneys'ees, ol any nature whatsoever, known or unknown, in law or equity, lixed or contingent, now or in ihe future, with respect to any actus) or alleged violations of Proposition 65 related to or arising I'roi1'1 Covered Products manufactured, imported, distributed, or sold by'Almar, Defendant Rclcasces or Releasees. With tespect to the foregoing waivers and rdeases in this paragraph, Balabbo hereby specifically waives any and all rights and benefits which shc now has, or in the future may have, conferred by virtue of thc provisions of II 1542 of thc California Civil Code, which provides as 10 follows: ll A GENERAL RELEASE DOES NOT EXTEND 'I'0 CI.AIMS 'I'I-IAT THE 12 CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TllvIE OF EXECUTING THE 13 REI,FASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATFRIALLY AFFECTED HIS OR HER SETTLFMENT WJT1.1 Tl-!E 14 DEBTOR OR RELEASED PARTY. 15 Balabbo, on behalf of herself, her past and current agents, representatives, attorneys, and 16 successors and/or assignees, expressly waives and relinquishes any and all rights and bcnclits that I 7 she or they may have under, or that may be conferred upon them by, the provisions of Cali 1'ornia Civil Code II 1542 as well as under any other state or fcdcral stauite or common law principle of 18 similar effect, to thc fullest extent they may lawfully waive such rights or benelits pertaining to 19 the released matters. 20 21 22 24 25 26 27 28 ol'3 6. 5.3 INTEGILikTION 6.1 Almar waives any and all claims against Balabbo, her attomcys and other representatives, for any and all actions taken nr statements made (or those that could have heen taken or made) by Balabbo and her attorneys and other representatives, whether in the course investigating claims or otherwise seeking enforcement of Proposition 65 against it in this matter, and/or with respect to Covered Products. 'fhis Consent Judgment contains the sole and entire agreement of'he Parties and any and all prior negotiations and understandings related hereto shall bc deemed to have been 9 CONSENT JUDGMENT merged within it. No representations or terms of agreeinen( other than those contained herein exist 2 or have been made by any Party with respect to the other Party or the subject matter hereof. 3 7. GOVERNING LAtiV 4 7.1 The terms of this Consent Judgment shall be governed by thc laws of the State oi 5 California and apply within thc State of California. In the event that Proposition 65 is repealed oi 6 is otherwise rendered inapplicable by reason of Iaw generally, or as to Covered Products, then Defendant shall have no further obligations pursuant to this Consent Judgment with respect to, and to the extent that, Covered Products are so affected. 8. NOTICES 10 8.! Unless specified herein, all correspondence and notices required to be provided pursuant to this Consent Judgnient shall be in writing and personally delivered or sent by: (I ) first- ]2 class, registered or certified mail, return receipt requested; or (2) ovetnight courier on any Party by 13 thc other Party at the following addresses: 14 For Defendant: 15 Almar & Bros., Inc. 16 c/o President/CEO 320 5'" Avenue 17 New York, NY 100018 18 With copies to: 19 Jeffrey Dweck, Esq. The Law Firm of Jeffrey S. Dwcck, P.C, 20 43 West 33rd Street, Suite 304 New York, New York 10001 21 And 22 J. Robert Maxwell 23 ROGERS JOSEPH O'DONNEL A Professional Law Coiporation 24 311 California Street, 10th Fl. San Francisco, CA 94104 25 And 26 I'or Balabbo: 27 Evan Smith 28 Brodsky & Smith, LLC 10 CONSENTJUDGMENT slr91al I 9595 Wilshire Blvd., Ste. 900 Beverly Ilills, CA 90212 2 A)ty Party, from time to time, nlay specify in writing to the other Party a change of address to 3 which all notices and other communications shall be sent. 9. COUNTEIIPARTFi: FACSIMII.E SIGNATURES 5 9.1 This Consent Judgment may be executed in countcrparts and by facsimile or pdf, each of which shall be deemed an original, and all ol'which, when taken together, shall constitute one and the same document. g 10. COMI'LIANCE WITII IIEALTII 8c SAirl. I'Y COI)E g 25249.7tt)/OOUR1' APPROVAL 10 I O.l Balabbo agrees to comply with the requirements set fotlh in California Ilcalth & ll Safety Code Ii 25249.7(f) and to promptly bring a Motion for Approval of this Consent Judgment. 12 Defendant agrees it shall support approval of such Motion, 13 10.2 This Consent Jud g ment shall not be effecti ve until it is approved and entered by the 14 Court and shall be null and void if, for any reason, it is not approved by the Court. In such case, the 15 Patlies agree to meet and confer in good faith on how to proceed and if such agreement is not 16 reached within 30 days, the case shall proceed on its norma) course. 17 19 20 21 22 23 24 11. I'his 10.3 SEVERABILITY 11.1 If the Court approves this Consent Judgment and is reversed or vacated by an appellate court, the Parties shall meet and confer in good faith as to whether to modify the terms o Consent Judgment. If the Parties do not jointly agree on a course of action to take, the case shall proceed on its normal course on the trial court's calendar. If, subsequent to the Court's approval and entry of this Consent.ludgment as a judgment, any provision of this Consent Jutlgmcnt is held by a court to bc unenforccable, the validity of the retraining provisions shall not be adversely affected. 25 12. .IOINT I'REPARATION 26 12.1 The Parties have jointly participated in the preparation of (his Consent Judgment 27 and this Consent Judgment is thc result of the joint efforts of the Parties. Accordingly, any 2g II CONSENT JUDGMENT slrsll uncertainty or ambiguity existing in this Consent Judgment shall not be interpreted against any Party as a result of the manner of the preparation of this Consent Judgment. Each Party to this Consent Judgment agrees that any statute or rulc of construction providing that ambiguities are ta be resolved against the drafting Party shall not be employed in thc interpretation of this Consent Judgment and, in this regard, the Parties hereby waive Calif'ornia Civil Code tj 1654. 6 I3 MODIFICATION 7 13.1 This Consent .ludgment may be modified only by further stipulation of the Parties g and the approval of the Court or upon the granting of a motion brought to the Court by either Party 9 10 ll 12 13 14 15 17 ]8 19 20 21 22 23 25 27 7g '6 14 15 ATTORNEY'S FEES 14.1 fhc only persons who may cnforcc this Consent Judgment are the Patties hereto. No Party shall bring a motion to enforce the terms of this Consent Judgment without first providing notice to the other party and meeting and conferring in good faith about the alleged violation for a period of at least 30 days. A Party who unsuccessfully brings or contests an action arising out of this Consent Judgment shall be required ta pay the prevailing Party's reasonable attorney's fees and costs. Nothing in this Section shall preclude a Fairy from seeking an award af sanctions pursuant to law. RETENTION OF,IllRISDICTION 15.1 This Court shall retain jurisdiction of this matter to implement or modify thc Consent Judgment. IREMAINDER OF PAGE JNTENTIONALL LEFT IJLANK] 12 CONSENT JUDGMENT sltsla I 1 16 AUTIIORIZATI ON 2 16.1 The undersigned warrant that they are authorized to exccutc this Consent Jndgment 3 on behalf of their respective Parties and have read, understood, and agree to all of the terms and 4 conditions of this Consent Judgment, and certify that each is fully authorized by thc Party he or she 5 represents to execute the Consent Judgment on behalf of thc Party represented and legally bind tha( 6 Party. Except as explicitly provided'herein each Party is to bear its own attorney's fees and costs. 7 8 AGREED TO,'GREED TO: 10 Date; 5/(9/2020 Date; 6/24/202C gf2tarlt/I'i rp, tsL . PRECCILA.! ALABHO ALMAR SALLS CO., INC, 12 13 14 IT IS SO ORDERS'D ADJUDGED AND DECREED 17, D d:+ I'(~Q gTHAN P St'HULMAN Ig 19 20 21 22 23 24 25 26 27 28 13 CONSENT JUDGMENT 5Ians I PROOF OF SERVICE COMMONWEALTH OF PENNSYLVANIA ) ) ss. COUNTY OF MONTGOMERY ) I, Evan J. Smith, Esquire, declare: I am over the age of eighteen years, and not a party to the within action; my California business address is 9595 Wilshire Blvd., Ste. 900, Beverly Hills, CA 90212 and my Pennsylvania business address is Two Bala Plaza, Suite 805, Bala Cynwyd, PA 19004. On September 17, 2020, I served the within documents: Notice of Entry of Judgment. by placing the document(s) listed above in a sealed envelope with postage thereon 10 fully prepaid, in the United States mail at Bala Cynwyd, PA, addressed as set forth below. Jeffrey Dweck Esq. 12 The Law Firm of Jeffrey S. Dweck, P.C. 43 West 33'treet, Suite 304 13 New York, NY 10001 14 J. Robert Maxwell 15 ROGERS JOSEPH O'DONNEL A Professional Law Corporation 16 311 California Street, 10'" Fl. San Francisco, CA 94104 17 18 Attorneys for Defendant 19 by placing the document(s) listed above in a sealed envelope and affixing a pre-paid air bill, and causing the envelope to be delivered to a 20 agent for delivery. 21 by personally delivering the document(s) listed above to the person(s) at the addressees) set forth below. 22 23 am readily familiar with my office's practice of collection and processing correspondence for I mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day 24 with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more 25 than one day after date of deposit for mailing in affidavit. 26 Ideclare under penalty of perjury under the laws of the State of California that the above is true and correct. Executed on September 17, 2020, at Bala 27 Evan J. Smith, Esquire -2- NOTICE OF ENTRY OF JUDGMENT