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SUPERIOR COURT OF THE STATE OF CALIFORNIA
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COUNTY OF SANTA CLARA
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THE PEOPLE OF THE STATE OF
CALIFORNIA, acting by and through Acting
Santa Clara County Counsel Lori E. Pegg; San
Francisco City Attorney Dennis Herrera; Alameda
County Counsel Donna R. Ziegler; Los Angeles
County Counsel John F. Krattli; Monterey County
Counsel Charles McKee; Oakland City Attorney
Barbara Parker; San Diego City Attorney Jan
Goldsmith; San Mateo County Counsel John C.
Beiers; Solano County Counsel Dennis Bunting;
and Ventura County Counsel Leroy Smith,
Plaintiffs and Cross-Defendants,
v.
ATLANTIC RICHFIELD COMPANY, et al.,
Defendants.
Case No.: 1-00-CV-788657
[PROPOSED] ORDER REGARDING
JOINT REQUEST FOR JUDICIAL
NOTICE
[Request for Judicial Notice and
Declaration of G. Garrett, filed
concurrently herewith]
Date:
Time:
Dept.:
Judge:
July 8, 2013
9:00 a.m.
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Hon. James P. Kleinberg
Action filed: March 23, 2000
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AND RELATED CROSS-ACTION.
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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Having read and considered the motion by defendants NL Industries, Inc., and defendant
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and cross-complainant the Sherwin-Williams Company (collectively “Defendants”) for an order
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granting judicial notice, and having considered all papers, materials, and arguments in support of
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and in opposition to the request; and good cause appearing;
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IT IS HEREBY ORDERED THAT Defendants’ Request for Judicial Notice is
GRANTED. Judicial notice is hereby taken of the following documents:
1.
The federal statute entitled “Lead-Based Paint Poisoning Prevention Act,” Pub. L.
Num. 91-695, 84 Stat. 2078 (1970) (approved Jan. 13, 1971).
2.
The federal statute entitled “Residential Lead-Based Paint Hazard Reduction Act
of 1992,” Title X, Pub. L. 102-550, October 28, 1992.
3.
The California statute entitled “An act to prevent the adulteration of paints, oils,
varnishes and pigments,” 1907 Cal. Stat. ch. 467 (approved March 22, 1907).
4.
The California statute entitled “Adulterated substances; manufacture or sale”, Cal.
Bus. & Prof. Code Ann. §§ 20500 to 20502 (West 2013).
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5.
The California statute, Cal. Civ. Code §§ 1102-1102.18 (West 2013).
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6.
The California statute, Cal. Health & Safe. Code §§ 17920-17928.
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7.
The California statute, Cal. Health & Safe. Code §§ 17980-17992.
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8.
The California statutes, Cal. Health & Safe. Code §§124125, 116875, 108555,
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110552, 25214.1, 108500, 108860 (LexisNexis 2013).
9.
The California statutes, entitled “Lead-Related Construction Work” and
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“Standard protecting health and safety of employees engaging in lead-related construction,” Cal.
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Lab. Code Ann §§ 6716-6717 (LexisNexis 2013).
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10.
The California statutes contained in Cal. Ed. Code Ann §§ 32240-32245
(LexisNexis 2013), true and correct copies of which are attached hereto as Exhibit 10.
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11.
The California statute entitled, 1941 Cal. Stat. Ch. 48 (approved Mar. 19, 1941).
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12.
The California statute, 1978 Cal. Stat. ch. 1391.
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13.
The California statute, 1985 Cal. Stat. ch. 1116.
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14.
The California statute, 1989 Cal. Stat. ch. 1455.
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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15.
The California statute, 1991 Cal. Stat. ch. 799.
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16.
The California statute, 1992 Cal. Stat. ch. 1317.
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17.
The California statute, 1993 Cal. Stat. ch. 1122.
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18.
The California statute entitled, “Childhood Lead Poisoning Prevention Act,” 1986
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Cal. Stat. ch. 481.
19.
The North Dakota statutes, 1905 N. D. Laws 13, 1921 N.D. Laws 1, 1923 N.D.
Laws 282, and 1925 Supp. to 1913 Compiled N.D. Laws §§ 2923-2925.
20.
The decision of the California District Court of Appeal, First District, Division 1,
Quirici v. Freeman, 98 Cal. App. 2d 194, 219 P.2d 897 (Cal. Dist. Ct. App. 1950).
21.
The decision of the Supreme Court of the United States, Heath & Milligan Mfg.
Co. v. Worst, 207 U.S. 338 (1907).
22.
The decision of the Appellate Court of Illinois, First District, Fifth Division, City
of Chicago v. American Cyanamid Company, et al., 355 Ill.App. 3d 209, 823 N.E.2d 126 (2005).
23.
The decision of the California Court of Appeal, Sixth District, County of Santa
Clara v. Atlantic Richfield Company, 137 Cal. App. 4th 292, 40 Cal.Rptr.3d 313 (2006).
24.
The decision of the California Court of Appeal, First District, Division Three,
Leppo v. City of Petaluma, 20 Cal. App. 3d 711 (1971).
25.
The decision of the California Court of Appeal, Sixth District, Suzuki v. City of
Los Angeles, 44 Cal. App. 4th 263 (1996).
26.
The decision of the California District Court of Appeal, Fourth District, The
County of San Diego v. C.W. Carlstrom, et al., 196 Cal. App. 2d 485 (1961).
27.
The decision of the Supreme Court of Pennsylvania, Lititz Mutual Ins. Co. v.
Steely, et al., 1999 Pa. Super. 331 (Super. Ct. Pa. 1999).
28.
The decision of the California Court of Appeal, Third District, Equilon
Enterprises v. State Board of Equalization et.al., 189 Cal. App. 4th 865 (2010).
29.
A regulation published in the Code of Federal Regulations, entitled “Banned
hazardous substances,” 21 C.F.R. § 191.9(a) (6) (rev. Apr. 1, 1973).
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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hazardous substances,” 16 C.F.R. § 1500.17 (rev. Jan. 1, 1974).
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A regulation published in the Code of Federal Regulations, entitled “Banned
31.
A regulation published in the Code of Federal Regulations, entitled “Lead-Based
Paint Poisoning Prevention in Certain Residential Structures,” 24 C.F.R § 35 (West 2013).
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32.
A regulation published in the Code of Federal Regulations, entitled
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“Requirements for Notification, Evaluation and Reduction of Lead-Based Paint Hazards in
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Federally Owned Residential Property and Housing Receiving Federal Assistance; Final Rule,”
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24 C.F.R. §35 et. al., (Sept. 15, 1999).
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33.
A regulation published in the Code of Federal Regulations, entitled “Lead-Based
Paint Poisoning Prevention in Certain Residential Structures,” 42 C.F.R § 745.61.
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34.
A regulation published in the Federal Register, entitled “Lead; Renovation,
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Repair, and Painting Program,” 73 Fed. Reg. 21,692 (Apr. 22, 2008) (to be codified at 40 C.F.R.
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pt. 745).
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35.
A regulation published in the Federal Register, entitled “Lead: Requirements for
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Hazard Education Before Renovation of Target Housing,” 63 Fed. Reg. 29,907 (June 1, 1998) (to
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be codified at 40 C.F.R pt. 745).
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36.
A regulation published in the Federal Register, entitled “Criteria for Classification
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of Solid Waste Disposal Facilities and Practices and Criteria for Municipal Solid Waste Landfills:
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Disposal of Residential Lead-Based Paint Waste,” 68 Fed. Reg. 36,487 (June 18, 2003) (to be
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codified at 40 C.F.R. pt. 257-258).
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37.
A regulation published in the Federal Register, entitled “Lead-Containing Paint
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and Certain Consumer Products Bearing Lead-Containing Paint,” 42 Fed. Reg. 44199-201 (Sept.
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1, 1977).
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38.
A regulation published in the Federal Register, entitled “Identification of
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Dangerous Levels of Lead,” 66 Fed. Reg. 1206 (Jan. 5, 2001) (to be codified at 40 C.F.R. pt.
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745).
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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39.
A guidance notice from the Environmental Protection Agency, published in the
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Federal Register, entitled “Guidance on Identification of Lead-Based Paint Hazards,” 60 Fed.
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Reg. 47,248 (Sept. 11, 1995).
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40.
The guidelines of the Office of Management and Budget, published in the Federal
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Register, entitled “Guidelines for Ensuring and Maximizing the Quality, Objectivity, Utility and
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Integrity of Information Disseminated by Federal Agencies,” 66 Fed. Reg. 49,718 (September 28,
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2001).
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41.
A regulation published in the Federal Register, entitled “National Ambient Air
Quality Standards for Lead,” 73 Fed. Reg. 66,964 (Nov. 12, 2008) (to be codified at 40 C.F.R.
50-51, 53, 58).
42.
Executive Order 12,866, published in the Federal Register, executed by William
Jefferson Clinton on September 30, 1993, entitled “Regulatory Planning and Review.”
43.
A regulation published in the California Code of Regulations, entitled
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“Occupational Lead Poisoning Prevention Program,” Cal. Code Regs. tit. 17, §§ 38001-38005
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(West 2013).
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44.
A regulation published in the California Code of Regulations entitled “Childhood
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Lead Poisoning Prevention Fee Regulations,” Cal. Code Regs. tit. 17, §§ 33001-33040; Cal. Code
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Regs. tit. 17, §§ 33001-33060 (West 2013).
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45.
A regulation published in the California Code of Regulations entitled
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“Accreditation, Certification, and Work Practices for Lead-Based Paint and Lead Hazards,” Cal.
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Code Regs. tit. 17, §§ 35001-36100 (West 2013).
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46.
An ordinance published in the Los Angeles County Code of Ordinances, Los
Angeles Cnty. Cal. Code of Ordinances tit. 11, div. 1, §§ 11.28.10, 11.28.20 (LexisNexis 2013).
47.
A resolution of the San Francisco Board of Supervisors, entitled “Resolution
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urging the implementation of measures to prevent the consumption of lead tainted candy by
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children in San Francisco,” S.F. Bd. of Supervisors Res. 27-05 (Cal. 2004).
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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48.
A statute published in the San Francisco Health Code, Article 26, entitled
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“Comprehensive Environmental Lead Poisoning Investigation, Management and Enforcement
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Program,” S.F., Cal., Health Code art. 26, div. 1, §§ 1600-1640 (2011).
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49.
A statute published in the San Francisco Health Code, Article 11, entitled
“Nuisances,” S.F., Cal., Health Code art. 11, §§ 580-616 (2011).
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A code section of the San Diego Municipal Code ch. 5, art. 4, div. 10 §§54.1001-
54.1015 (2008).
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51.
U.S. Patent No. 2,378,900, entitled “Coating Device,” issued June 26, 1945.
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52.
U.S. Patent No. 194,564, entitled “Improvement in Packing or Shipping Cans,”
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issued August 28, 1877.
53.
The legislative history of Senate Bill 460, Chapter 931 of the Statutes of 2002,
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Enacting Health and Safety Code §§ 105251 - 105257, compiled by and accompanied by a signed
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declaration of Jan Raymond, executed June 28, 2013.
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54.
The legislative history of the Lead Abatement Statutes, enacted by Chapter 477,
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the Statutes of 2006 and enacted by Chapter 931, the Statutes of 2002, compiled by and
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accompanied by the signed declaration of Jan Raymond, executed December 13, 2010.
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55.
A report of the Environmental Protection Agency Public Participation Policy
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Review Workgroup Prepared for the EPA Administrator, entitled “Engaging the American
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People, A Review of EPA’s Public Participation Policy and Regulations with Recommendations
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for Action, dated December 2000.
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56.
The guidelines of the United States Environmental Protection Agency, National
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Center for Environmental Economics, Office of Policy, entitled “Guidelines for Preparing
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Economic Analyses,” dated 2010.
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57.
The report published on the website of the United States Environmental
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Protection Agency, entitled “Leaded Gas Phaseout: Air Quality Fact Sheet,” dated June 1995,
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available at: http://yosemite.epa.gov/R10/airpage.nsf/webpage/ Leaded+Gas+Phaseout (last
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visited June 23, 2013).
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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58.
The record of the hearing before the Committee on Manufacturers of the United
States Senate, 61st Congress, 2nd Session, dated February 17, 1910.
59.
The record of the hearing before the Committee on Interstate and Foreign
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Commerce of the United States House of Representatives, 61st Congress, 2nd Session, on H.R.
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21901, dated May 31, 1920.
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60.
The legislative history of Assembly Bill 422, regarding lead hazards, compiled
by and accompanied by the signed declaration of Jan Raymond, executed April 29, 2013.
61.
The Declaration of Alfred R. Friedrich, the Assistant Auditor-Controller for the
County of Monterey, executed February 26, 2013, filed under ECF No. 3229.
62.
The Declaration of Blanca Cantu, a former Public Health Nurse for the Monterey
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County Childhood Lead Poisoning Prevention Program, executed April 25, 2013, filed under
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ECF No. 3230.
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63.
The Stipulation Regarding San Mateo Specific Facts, executed August 1, 2012
filed under ECF No. 3231.
64.
The Stipulation Regarding the Authenticity of Certain Documents Maintained by
Hideki Hara, executed September 24, 2012, filed under ECF No. 3232.
65.
The Stipulation Regarding the Authenticity of Certain Documents Maintained by
Joan McLaughlin, executed September 21, 2012, filed under ECF No. 3233.
66.
The Stipulation with the City of Oakland regarding certain categories of
documents, executed June 21, 2013, filed under ECF No. 3234.
67.
The Stipulation with the County of Alameda regarding documents associated with
the Get the Lead Out Coalition, executed October 29, 2012, filed under ECF No. 3235.
68.
The Stipulation with the County of Alameda regarding programs in certain county
departments, executed June 21, 2013, filed under ECF No. 3236.
69.
The Joint Stipulation Regarding Sherwin-Williams Specific Deposition Topics,
executed May 7, 2012 and on May 9, 2012, filed under ECF No. 1459.
70.
The Stipulation Regarding the Admissibility of the Contents of Certain
Documents in Lieu of Exhibits and to Certain Facts, executed June 29, 2012.
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE
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71.
The dictionary entitled “The National Paint Dictionary,” 3rd Edition, written by
Jeffrey R. Stewart, published in January 1948.
72.
A memorandum from the Executive Office of the President regarding Executive
Order 13,563, issued February 2, 2011, entitled “Improving Regulations and Regulatory Review.”
73.
The report of the United States General Administration Office to the Chairman,
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Subcommittee on Environmental and Hazardous Materials, Committee on Energy and
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Commerce, House of Representatives, entitled, “District of Columbia's Drinking Water: Agencies
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Have Improved Coordination but Key Challenges Remain in Protecting the Public from Elevated
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Lead Levels,” dated March 2005.
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Dated: ______________, 2013
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Hon. James P. Kleinberg
California Superior Court Judge
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[PROPOSED] ORDER RE: JOINT REQUEST FOR JUDICIAL NOTICE