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SAN JOSE — In a setback for the affirmative litigation movement, a judge in Santa Clara has tossed out a closely watched suit against paint companies that was filed by Santa Clara and joined by San Francisco and several cities. On Tuesday, Judge Jack Komar ruled that the statute of limitations had expired on the claims for the cost of cleaning up contamination caused by the lead used in paint for decades. The suit was championed by Santa Clara County Counsel Ann Ravel, who along with her counterparts in San Francisco have stirred controversy by pursuing gun manufacturers, tobacco companies and other unpopular defendants in court. “Hopefully,” said James Speyer, an Arnold & Porter partner in Los Angeles representing paint companies, “this will put an end to the unfortunate trend we’ve seen of county counsel trying to turn the offices into profit centers by partnering with deep-pocket, private plaintiffs lawyers.” Ravel had partnered in the suit with Burlingame’s Cotchett, Pitre, Simon & McCarthy, agreeing to pay the plaintiffs firm 17 percent of any settlement or verdict. Partner Bruce Simon defended the county’s interest and his firm’s involvement. “Counties are public institutions who are supposed to protect the welfare of the public. This case has nothing to do with money or the attorneys,” said Simon, adding that taxpayers will end up on the hook for cleanup costs if the suit fails. “We don’t get anything unless we get something back.” Santa Clara, San Francisco and other local governments that joined the suit have vowed to appeal. “It’s not over,” said Santa Clara Assistant County Counsel Laurie Faulkner. “We don’t view this as done by any means.” Faulkner said Komar’s ruling was based on a split of appellate authority on when the statute of limitations began to run. “It was purely a legal issue,” she said. Ravel was out of the office Wednesday, and Faulkner declined to discuss whether the ruling would affect the office’s plans for affirmative litigation. “Ann is the visionary,” Faulkner said. Faulkner also said she couldn’t quantify the amount of county resources allocated to the case. In the past, Ravel has indicated she’s assigned two attorneys to handle several affirmative litigation matters. A spokesman for San Francisco City Attorney Dennis Herrera said cases like the lead paint suit are about “protecting public safety and going after corporate wrongdoing. It can be expensive and it can be high risk, but ultimately, not going after this wrongdoing is more expensive.” Ravel filed County of Santa Clara v. Atlantic Richfield, 788-657, in March 2000, demanding that paint and chemical companies pay to clean up chipping lead paint, which can injure children who are exposed to it. Previous rulings had whittled down the causes of action, dismissing nuisance and trespass claims against the eight defendant companies. On Tuesday, Komar dismissed five remaining causes of action for fraud, product liability, negligence and unfair competition, ruling that under 1994′s City of San Diego v. United States Gypsum Co., Cal.App.4th 575, the three-year statute of limitations began to run when lead paint was first applied, and the plaintiffs knew for years that lead paint was hazardous, citing the 1978 federal law banning the sale of lead-based paint. The counties contend that under 1995′s San Francisco Unified School District v. W.R. Grace, 37 Cal.App.4th 1318, the clock doesn’t start ticking until the paint becomes a health hazard.

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