Judge Bruce G. Iwasaki, Case 22STCV34121 2023-01-24 Tentative Ruling

This is a Proposition 65 action for violation of Health and Safety Code section 25249.6 et seq and declaratory relief. Zachary Stein (Plaintiff) alleges that Nielsen-Massey Vanillas Inc. (Defendant) manufactured rose water that contains the chemical Methyleugenol.

Defendant demurs to the Complaint, arguing that Plaintiff’s pre-lawsuit notice is defective. It argues that Plaintiff filed his Complaint before the 70-day waiting period expired,[1] the notice did not contain his personal identifying information and did not contain a proper attachment. They also argue the declaratory relief claim fails as derivative of the first cause of action. Counsel’s declaration satisfies the meet-and-confer requirement. (Roberts Decl., ¶ 6.)

Plaintiff filed an opposition, conceding that he filed 68 days after service of the notice, but that a “two-day head-start . . . does not significantly hinder the purpose of the notice requirement.” He also asserts that the missing language in the attachment is immaterial. Defendant reiterated its arguments in reply.

Defendant’s request for judicial notice of the “Final Statement of Reasons” adopting section 25903 of Title 27 of the California Code of Regulations is granted. (Evid. Code, § 452, subd. (c).) However, the request as to Lexis Nexis Public Records search results is denied. The results are reasonably subject to dispute given that the exhibit itself contains multiple entries for “Zachary Stein,” so it is unclear which entry is accurate. Even if judicial notice is granted, a court “generally may not take judicial notice of the truth of facts asserted within documents.” (Julian Volunteer Fire Co. Assn. v. Julian-Cuyamaca Fire Protection Dist. (2021) 62 Cal.App.5th 583, 600.)

The Court finds that the Plaintiff’s pre-lawsuit notice to Defendant is deficient and sustains the demurrer without leave to amend.

A demurrer is an objection to a pleading, the grounds for which are apparent from either the face of the complaint or a matter of which the court may take judicial notice. (Code Civ. Proc., § 430.30, subd. (a); see also Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) The purpose of a demurrer is to challenge the sufficiency of a pleading “by raising questions of law.” (Postley v. Harvey (1984) 153 Cal.App.3d 280, 286.) “In the construction of a pleading, for the purpose of determining its effect, its allegations must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.) The court “ ‘ “treat[s] the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law . . ..” ’ ” (Berkley v. Dowds (2007) 152 Cal.App.4th 518, 525.)

First cause of action –violation of Health and Safety Code section 25249.6, failure to provide clear and reasonable warnings under Proposition 65

A private citizen who files a lawsuit pursuant to Proposition 65 must first serve a valid 60-day pre-suit notice that complies with statutory and regulatory requirements. (Health & Saf. Code, § 25249.7.) The notice must contain an “attachment [of] a copy of ‘The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary.’” This document is provided by the Office of Environmental Health Hazard Assessment (OEHHA). (Cal. Code Regs., tit. 27, § 25903, subd. (b)(1).) In addition, the notice must identify “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity.” (Id. at subd. (b)(2)(A)(1).)

“An action is deemed to have been ‘commenced more than sixty days after the person has given notice’ where more than sixty days have elapsed from the date of service of the notice, as that date would be calculated for service of a document pursuant to the provisions of Code of Civil Procedure Section 1013.” (Cal. Code Regs., tit. 27, § 25903, subd. (d)(1).) Under section 1013, subdivision (a), the time for service is extended by “10 calendar days if either the place of mailing or the place of address is outside the State of California but within the United States.”

Here, Plaintiff provides a copy of the notice that was reportedly sent to Defendant as Exhibit A to his Complaint. This notice, however was defective. It included an outdated summary of Proposition 65 that omits information from the current version. The summary provides potential defendants with information regarding Proposition 65 that may allow them to resolve the problem prior to litigation.

Plaintiff contends that these omissions are insignificant because the missing language does not apply to this dispute. The Court rejects this argument based on a comparison with the most recent version of the summary.[2] For example, Plaintiff’s notice fails to include a link to the text of Proposition 65 and the most current list of chemicals as in the first page of the most recent summary. The provided summary also fails to include an exemption describing the grace period of 12 months once a chemical has been listed. Finally, the summary also fails to include language that a private party may not file an enforcement action based on certain exposures if the alleged violator meets specific conditions.[3]

The regulation requires that a private citizen filing suit comply “with all requirements of this section.” (Cal. Code Regs., tit. 27, § 25903, subd. (a).) “[A]dministrative regulations are generally accorded great weight.” (Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 741, 745.) Plaintiff’s service of an outdated summary is tantamount to not serving a summary at all and renders his notice invalid. (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 973-974 [plaintiff’s failure to serve a copy of the summary “renders the notice served on [defendant] invalid because the notice fails to satisfy a mandatory prerequisite to a citizen lawsuit].) Plaintiff attempts to distinguish Kintetsu on the basis that the notices there were also substantively defective because they did not differentiate the chemicals in each product; however, he fails to distinguish the Court of Appeal’s language that the failure to provide the attachment summary is fatal to the notice requirement and bars the lawsuit. (See also Sciortino v. Pepsico, Inc. (N.D. Cal. 2015) 108 F.Supp.3d 780, 790 [“California [Proposition 65] cases strictly enforce the notice requirements and hold that pre-filing notice is mandatory”]; Physicians Committee for Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 166, 179 [“The required notice ‘is a mandatory precondition to bringing a citizen enforcement suit’”]; Center for Self-Improvement & Community Development v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1554.)

In a similar context, the U.S Supreme Court has held that strict compliance with the notice and 60-day provisions under the Clean Water Act are “mandatory conditions precedent to commencing suit.” (Hallstrom v. Tillamook (1989) 483 U.S. 20, 31; see Yeroushalmi, supra, 88 Cal.App.4th at p. 748 [Clean Water Act decisions are useful in construing Proposition 65].)

As the demurrer is sustained because of the failure to provide a copy of the most recent “The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary” attachment, the Court does not reach the arguments as to the premature filing of the Complaint and lack of identifying information.

This cause of action is dependent on the statutory claim above. (Complaint, ¶ 32.) Thus, this demurrer is sustained. (Ochs v. PacifiCare of California (2004) 115 Cal.App.4th 782, 794 [demurrer properly sustained on cause of action for declaratory relief that was “wholly derivative of” other causes of action on which demurrer had been properly sustained]; Ball v. FleetBoston Financial Corp. (2008) 164 Cal.App.4th 794, 800 [“Where a trial court has concluded the plaintiff did not state sufficient facts to support a statutory claim and therefore sustained a demurrer as to that claim, a demurrer is also properly sustained as to a claim for declaratory relief which is ‘wholly derivative’ of the statutory claim”].)

Plaintiff has the burden of proving a reasonable possibility of amendment. (Blank v. Kirwan, supra, 39 Cal.3d at p. 318.) He has not explained how he could possibly amend the complaint given the defective notice. Accordingly, the demurrer is sustained without leave to amend.

[1] The pre-lawsuit notice was sent on August 17, 2022. (Complaint, ¶ 9.) The earliest date in which Plaintiff could file the Complaint was October 26, 2022. The Complaint was filed on October 24, 2022.

[2] The most recent version of the summary is available on OEHHA’s site: https://oehha.ca.gov/media/downloads/crnr/appendixa101217.pdf

[3] Plaintiff’s summary also omits other information including various hyperlinks and does not include descriptions of recent exposure data such as chemicals with “No Significant Risk Levels” (NSRLs) and “Maximum Allowable Dose Level” (MADLs).