Judge: Anne Richardson, Case: 23STCV27899, Date: 2024-06-14 Tentative Ruling

DEPARTMENT 40 - JUDGE ANNE RICHARDSON - LAW AND MOTION RULINGS
The Court issues tentative rulings on certain motions.The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)]. If the parties wish to submit on the tentative ruling and avoid a court appearance, all counsel must agree and choose which counsel will give notice. That counsel must 1) email Dept 40 by 8:30 a.m. on the day of the hearing (smcdept40@lacourt.org) with a copy to the other party(ies) and state that all parties will submit on the tentative ruling, and 2) serve notice of the ruling on all parties. If any party declines to submit on the tentative ruling, then no email is necessary and all parties should appear at the hearing in person or by Court Call. 

Case Number: 23STCV27899    Hearing Date: June 14, 2024    Dept: 40

Superior Court of California

County of Los Angeles

Department 40

I. Background

Plaintiff Clean Products Advocates LLC (CPAL) sues Defendants Canton Food Co., Inc. (CFC), and Does 1 through 100 pursuant to a November 14, 2023, Complaint alleging a single claim of Violation of Proposition 65 against all Defendants.

On February 13, 2024, CFC filed a demurrer to the Complaint’s sole claim.

On May 31, 2024, CPAL filed an opposition, and on June 3, 2024, CFC filed a reply.

CFC’s demurrer is now before the Court.

II. Demurrer

A. Requests for Judicial Notice

Per CFC’s request, the Court takes judicial notice of the 60-day notice on which the first cause of action is alleged as relates to the product Octomari, in part because Plaintiff has not objected to this request and has argued the sufficient of the certificate of merit allegations. Moreover, the Court can properly take judicial notice of documents extensively referenced in pleadings. (Ingram v. Flippo (1999) 74 Cal.App.4th 1280, 1285, fn. 3 [judicial notice of documents referred to extensively in complaint is appropriate on demurrer]; accord Align Technology, Inc. v. Tran (2009) 179 Cal.App.4th 949, 956, fn. 6.) Last, judicial notice may be taken as to the existence of a document and the legal effects deriving therefrom. (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600.)

Per CPAL’s request, the Court takes judicial notice of the Complaint in this action. (Evid. Code, §§ 452, subd. (d), 453, subds. (a)-(b).)

B. Demurrer Legal Standard

A demurrer for sufficiency tests whether the complaint states a cause of action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747; see Code Civ. Proc., § 430.10, subd. (e).)

To sufficiently allege a cause of action, a complaint must allege all the ultimate facts—that is, the facts needed to establish each element of the cause of action pleaded. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn. (2006) 39 Cal.4th 235, 242.) “[E]ach evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.)

In testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-67.) Courts read the allegations liberally and in context. (Taylor v. City of Los Angeles Dept. of Water and Power (2006) 144 Cal.App.4th 1216, 1228, disapproved on other grounds, Jones v. Lodge at Torrey Pines Partnership (2008) 42 Cal.4th 1158, 1162.) A demurrer, however, “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

C. Demurrer Analysis

1. Demurrer, Complaint, First Cause of Action: SUSTAINED, with leave to amend.

a. Relevant Law

Proposition 65 is a “right to know” statute requiring companies that expose consumers to carcinogens or reproductive toxins to provide a reasonable and clear warning. (Health & Saf. Code, § 25249.6.) It is a remedial law designed to protect the public whose provisions are construed broadly to accomplish that protective purpose. (People ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 314.)

Proposition 65 provides for citizen enforcement if the enumerated public prosecutors do not initiate diligent prosecution within 60 days of service of notice of purported violations to the alleged violator and the public attorneys. (Health & Saf. Code, § 25249.7, subd. (d)(1).)

Where the notice alleges failure to warn of exposure to chemicals known to cause cancer or reproductive toxicity, the notice must include a certificate of merit stating that the private enforcer “has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical ..., and that, based on that information, the [certifier] believes there is a reasonable and meritorious case for the private action.” (Health & Saf. Code, § 25249.7, subd. (d)(1).)

Successful enforcement actions can result in the assessment of serious civil penalties, up to $2,500 per day for each violation. (Health & Saf. Code, § 25249.7, subd. (b)(1).)

A conclusive failure to provide a compliant, 60-day notice with a certificate of merit entitles a trial court to sustain a demurrer for failure to exhaust Prop 65’s administrative remedies. (See Physicians Comm. for Responsible Med. v. Applebee’s Int’l, Inc. (2014) 224 Cal.App.4th 166, 180-181, 183 [Affirming trial court sustained demurrer for failure to comply with certificate of merit requirements where trial court relied on plaintiff’s counsel’s statements on oral argument to the effect that the statutorily required investigation prior to filing the 60-day notice was never conducted].)

b. Court’s Determination

The Court finds in favor of CPAL.

The Complaint’s claim arises in relation to CFC’s alleged failure to warn consumers of the content of cadmium in what appear to be nine products sold and/or distributed by CFC. (See, e.g., Complaint, ¶ 1 [nine products listed and separated by colons]; contra. Opp’n, p. 3 [arguing there are twelve products alleged in ¶ 1].)

The Complaint alleges that “[m]ore than sixty days prior to the filing of this lawsuit naming each Defendant, Plaintiff issued 60-Day Notices Of Violation (‘Notices’) as required by and in compliance with Proposition 65. Plaintiff provided said Notices to the various required public enforcement agencies along with Certificates Of Merit. The Notices alleged that Defendants violated Proposition 65 by failing to sufficiently warn consumers in California of the health hazards associated with exposure to LEAD and/or CADMIUM contained in their Products.” (Complaint, ¶ 13.)

This allegation, however, does not allege that CPAL “has consulted with one or more persons with relevant and appropriate experience or expertise who has reviewed facts, studies, or other data regarding the exposure to the listed chemical ..., and that, based on that information, the [certifier] believes there is a reasonable and meritorious case for the private action.” (Health & Saf. Code, § 25249.7, subd. (d)(1); see Demurrer, p. 6 [citing this standard]; but see Demurrer, p. 8 [substantive argument centering on lack of allegations re: visiting store to confirm no notices were provided or that no notice was provided generally].) This allegation is required where the Complaint alleges a violation of Health and Safety Code section 29249.6. (Health & Saf. Code, § 25249.7, subd. (d)(1); see Complaint, ¶¶ 1, 15.) Yet, CPAL only conclusorily alleges that it served notices in conformity with Proposition 65 alone and that the notices “alleged that Defendants violated Proposition 65 by failing to sufficiently warn consumers in California of the health hazards associated with exposure to LEAD and/or CADMIUM contained in their Products.” (Complaint, ¶ 13.) Neither did CPAL attach the relevant certificates of merit to the Complaint as to show statutory compliance with section 25249.7, subdivision (d)(1), in relation to the nine or twelve products stated in paragraph 1 of the Complaint.

Under these circumstances, the Complaint is insufficiently alleged as to the certificates of merit supporting this private action. CFC’s demurrer is SUSTAINED on these grounds, with leave to amend as to cure this defect, e.g., through updated pleadings sufficiently alleging the required information through ultimate facts or attachment of the certificates.

In reaching its ruling, the Court does not rely on the certificate of merit attached to the demurrer’s request for judicial notice. As correctly noted by the opposition, only one certificate of merit is attached in connection to product Octomari, which is only one of the nine or twelve products stated in paragraph 1 of the Complaint. Arguendo, reliance on that certificate would only allow for an order relating to the sufficiency of the Octomari component of the first cause of action and not the sufficiency of the allegations as to the other products, which would result in an order that is inappropriate on demurrer. (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047 [“A demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy”].) 

III. Conclusion

Demurrer of Defendant Canton Food Co., Inc. [Res ID # 7660] is SUSTAINED, with leave to amend.