Judge: Christopher K. Lui, Case: 22STCV21923, Date: 2022-10-14 Tentative Ruling
Case Number: 22STCV21923 Hearing Date: October 14, 2022 Dept: 76
Pursuant to California Rule of Court 3.1308(a)(1), the Court does not desire oral argument on the motion addressed herein. As required by Rule 3.1308(a)(2), any party seeking oral argument must notify ALL OTHER PARTIES and the staff of Department 76 of their intent to appear and argue. Notice to Department 76 may be sent by email to smcdept76@lacourt.org or telephonically at 213-830-0776. If notice of intention to appear is not given and the parties do not appear, the Court will adopt the tentative ruling as the final ruling.
Defendants sell a product which exposes consumer to cadmium when they consume the product, without a warning that complies with Proposition 65, Health & Safety Code § 25249.5, et seq.
Defendants Enjoy Life Natural Brands, LLC and Trader Joe’s Company demur to the Complaint.
TENTATIVE RULING
Defendants Enjoy Life Natural Brands, LLC and Trader Joe’s Company’s demurrer to the first and only cause of action is OVERRULED.
Defendants are to answer the Complaint within 10 days.
ANALYSIS:
Demurrer
Meet and Confer
The form Declaration of Richard J. McNeil is ambiguous as to whether the meet and confer requirements pursuant to CCP § 430.41 were satisfied. However, it appears that there was a meet and confer attempt.(McNeil Decl., ¶ 1.) In the future, counsel are to clearly indicate that the timing requirements set forth in CCP § 430.41 were observed.
Request For Judicial Notice
Defendants request that the Court take judicial notice of the following:
(1) Consent Judgment in As You Sow v. Trader Joe’s Company, et al., San Francisco Superior Court Case No. CGC-15-548791 (Hon. Suzanne R. Bolanos, Dept. 504, February 15, 2018) attached as Exhibit C;
GRANTED per Evid. Code § 452(d)(court records)..
(2) The two 60-Day Notice Letters served upon the Attorney General, as well as Defendants Enjoy Life Natural Brands, LLC and Trader Joe’s Company, respectively attached as Exhibits A and B;
DENIED. These are private communications from Plaintiff’s counsel to Defendants. There is no indication that these documents were obtained from official Attorney General records.
(3) California Regulatory Law Bulletin dated April 25, 1997 (97-17 CRLB 223) [Adoption of Notice Requirements for Actions Brought under the Safe Drinking Water and Toxic Enforcement Act of 1986], attached as Exhibit D;
DENIED. Because the Court does not take judicial notice of the 60-day notices, this document is not relevant on demurrer. The Court need only take judicial notice of relevant materials. (Mangini v. R.J. Reynolds Tobacco Co. (1994) 7 Cal.4th 1057, 1063, overruled in part on other grounds noted in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1276.) The Court may deny a request for judicial notice of material unnecessary to its decision. (Rivera v. First DataBank, Inc. (2010) 187 Cal.App.4th 709, 713.)
(4) Minute Order in Van Patten v. Bush Bros. & Co., San Diego Superior Court Case No. 37-2020-00026752-CU-MC-CTL (Hon. Richard Whitney, Dept. C-68, March 2, 2021) sustaining the demurrer without leave to amend in absence of plaintiff having strictly complied with Proposition 65 pre-filing requirements, including the noticing party’s telephone number, attached as Exhibit E;
DENIED. This is not decisional authority but is improperly cited as such.
(5) Minute Order in Ecological Alliance, LLC v. Trader Joe’s Company, LASC Case No. 21STCV42364 (Hon. Wendy Chang, Dept. 36, April 12, 2022) sustaining demurrer without leave to amend in absence of plaintiff having strictly complied with Proposition 65 pre-filing requirements, attached as Exhibit F;
DENIED.
(6) United States Securities and Exchange Commission Form 8-K dated February 17, 2015 identifying Mondelez International, Inc. as Registrant and identifying the acquisition by Mondelez of Enjoy Life Natural Products (p. 31), attached as Exhibit G.
GRANTED as an agency record (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1573.), but only to its existence, not the truth of the matters asserted therein. (Board of Pilot Commissioners v. Superior Court (2013) 218 Cal.App.4th 577, 597.)
Discussion
1. First and Only Cause of Action (Violations of Health & Safety Code § 25249.6.)
Defendants Enjoy Life Natural Brands, LLC and Trader Joe’s Company demur to the Complaint on the following grounds:
a. Defective, non-curable, mandatory, and fatal pre-suit notice of the Complaint, pursuant to Cal. Code Civ. Proc. § 430.10 (a) (lack of subject matter jurisdiction).
This argument relies upon documents of which the Court has denied taking judicial notice. As such, this argument is not persuasive at this time.
b. Defective, non-curable, mandatory, and fatal pre-suit and post-suit notice of the Complaint, pursuant to Cal. Code Civ. Proc. § 430.10 (e) (failure to state a claim).
Defendants argue that Plaintiff did not provide the Attorney General of the State of California with mandatory post-filing information including that the complaint had been filed and that required to be provided on the Report of Civil Complaint Filing Form (attached as Appendix A to the Title 11, Division 4 regulations). This form was required to be provided to the Attorney General within five (5) days of receipt by plaintiff’s counsel of the file-endorsed copy of the complaint from the court, all of foregoing as was required by 11 Cal. Code Regs. § 3002. This was not done in this case.
Defendants do not explain how they know this to be true. There are no judicially noticeable documents offered in this regard.
This argument is not persuasive at this time.
c. Failure to state a claim, pursuant to Cal. Code Civ. Proc. § 430.10 (e), where, here, Plaintiff knows its claim is barred by issue preclusion arising from the Consent Judgment entered by Hon. Suzanne R. Bolanos of the Superior Court of San Francisco on February 15, 2018 in the case styled As You Sow v. Trader Joe’s Company, et al. (Case No. CGC-15-548791) (“Consent Judgment” or “As You Sow”).
Defendants argue that this action is barred by res judicata due to the consent judgment approved and entered on February 14, 2018 by the San Francisco Superior Court in As You Sow v. Trader Joe’s Company, Case No. CGC-15-548791 (“Consent Judgment”). According to Defendant, The Consent Judgment resolved claims that were filed against Trader Joe’s concerning lead and/or cadmium in various chocolate products it sold. In addition, 32 cocoa processors and/or chocolate manufacturers (including Defendant Enjoy Life’s parent company Mondelez, Inc.) became “Settling Defendants” and countless other companies are covered by a broad “downstream release.” In short, Defendants argue, the Consent Judgment governs virtually the entire chocolate industry for chocolate-based products.
Defendants argue that the Consent Judgment constitutes “a full, final, and binding resolution” of any alleged violation for failure to provide Proposition 65 warnings of exposure to cadmium in chocolate-based products—precisely what Parseghian is seeking to prosecute with this action. Defendants argue that to permit Parseghian’s suit to move forward despite the terms of the Consent Judgment would permit the re-litigation of the identical claim (alleged excess cadmium in chocolate products), between the same parties, where that issue was fully and finally resolved, as embodied in the Consent Judgment.
In the Opposition, Plaintiff argues that res judicata does not apply because the products covered by the Consent Judgment are not the same products addressed in this lawsuit.
Plaintiff argues that the Consent Judgment covers "Chocolate Products," which is defined as "chocolate candy; chocolate bars, pieces, chips, beverages, and chocolate-based confections with or without inclusions, cocoa nibs and cocoa powder; chocolate and cacao-based compounds in any form, and other products derived primarily (i.e. in excess of 50%) from cacao." (Demurrer Deel. McNeil Ex. C, at, ¶ 2.1; sec also id. at §2.4 (defining "Covered Product" as a "Chocolate Product").) Section 6.2 of the Consent Judgment makes it clear that the Consent Judgment only applies to products that are comprised of a minimum of 65% cacao content. (Id. at ¶ 6.2.) The Consent Judgment only applies to the chocolate component of "Chocolate Product and does not address tolerance levels for other ingredients that may be found in the products. (See generally id. at ¶ 6.2.)
Plaintiff argues that, in light of the clear terms of the Consent Judgment, the products at issue in the instant action may not qualify as "Chocolate Products." As noted, the Consent Judgment only applies to products with a minimum of 65% cacao content. (Id. at ¶ 6.2.) Here, the product at issue is a mixed ingredient product. (Deel. Krikorian at ¶ 4.) Neither the product label nor any other evidence suggests or proves that this product is a "chocolate product" within the meaning of the consent judgment. (Id.) Accordingly, the Defendant's Protein Bites are not "Chocolate Products" for purposes of the Consent Judgment.
Further, Plaintiff argues, the prior Consent Judgment only addressed tolerance levels in the chocolate portion of "Chocolate Products." (Sec Demurrer Deel. McNeil Ex. C at ¶ 6.2.) Defendants’ Protein Bites are mixed ingredient products, containing a significant amount of ingredient~ other than chocolate. (Deel. Krikorian at ¶ 3.) Only through the course of litigation can the percentages of these ingredients be determined, as well as the inclusion of known carcinogens in excess of allowable levels. (Id.)
Plaintiff argues that Defendants must still prove that these other ingredients in the Protein Bites do not exceed tolerated levels of heavy metals. Because the two lawsuits address different products, this matter is not barred by res judicata.
The Court agrees with Plaintiff that it is yet to be determined whether the Protein Bits at issue in this action qualify as a “Chocolate Product” which is derived primarily (i.e., in excess of 50%) from cacao, or qualify as “chocolate candy; chocolate bars, pieces, chips, beverages, and chocolate-based confections with or without inclusions; cocoa nibs and cocoa powder; chocolate and cacao-based compounds in any form.” (Consent Judgment, ¶ 2.1.)
It may be that the evidence will eventually demonstrate that the Protein Bites do qualify as “Chocolate Products” and that res judicata does apply. However, this argument is not persuasive on demurrer.
d. Lack of certainty, pursuant to Cal. Code Civ. Proc. § 430.10 (f), based on Plaintiff’s inability to explain during the meet and confer how it is that the Complaint can be prosecuted in the face of the absolute bar of issue preclusion afforded both Defendants under the Consent Judgment.
The inability to explain something during the meet and confer process does not render a complaint uncertain.
A demurrer for uncertainty is properly sustained where the complaint is so vague or uncertain that the defendant cannot reasonably respond, i.e., when the defendant cannot determine what issues must be admitted or denied, or what counts are directed against the defendant. (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616; Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial, supra, ¶ 7:85.) Demurrers for uncertainty are disfavored and strictly construed “because ambiguities can reasonably be clarified under modern rules of discovery.” (Lickiss v. Financial Industry Regulatory Authority (2012) 208 Cal.App.4th 1125, 1135.)
This ground for demurrer is without merit.
For the foregoing reasons, none of Defendants’ arguments are persuasive on demurrer.
The demurrer to the first and only cause of action is OVERRULED.
Defendants are to answer the Complaint within 10 days.