Judge: Colin Leis, Case: 24STCV00656, Date: 2024-12-11 Tentative Ruling
Case Number: 24STCV00656 Hearing Date: December 11, 2024 Dept: 74
Parseghian v. Real Ketones, LLC et al.
Defendants Real Ketones, LLC and CVS Pharmacy, Inc.’s Demurrer
BACKGROUND
Plaintiff Berj Parseghian brought this complaint against Real Ketones, LLC and CVS Pharmacy, Inc. (Defendants) in the public interest under California Health & Safety Code section 25249.6 et seq. (Proposition 65.)
Defendants demur to the Complaint.
JUDICIAL NOTICE
The Court grants judicial notice to Ex. “A”, “G”, “H” and “I”.
The Court denies the other requests for judicial notice. Moreover, on its own motion, the Court strikes the following from the parties’ papers because the parties improperly cite non-precedential trial court rulings on a point of law: Is the proper standard strict compliance or substantial compliance, or alternatively, is contact information for an attorney sufficient? The court strikes:
(1) Moving Papers: pp. 2:18-3:8, 11:20-12:13
(2) Opposition: pp. 5:13-6:14, 13:17-25
(3) Reply: p. 7:20-27
Defendants misread Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (168 Cal.App.4th 675, 686-687, which is distinguishable. ExxonMobile found that privity (which is either a purely factual question or a mixed question of law and fact) existed between two public advocacy groups seeking redress against the same defendant involving the same primary right. Here, however, Defendants incorrectly attempt to expand ExxonMobile to argue that other trial courts’ non-precedential decisions involving the pure question of law of the proper interpretation of Proposition 65 ought to influence or bind this court. To state the proposition shows its invalidity.
DISCUSSION
Defendants demur to the Complaint on the ground that Plaintiff did not meet the statutory pre-suit notice requirements for private enforcement of Proposition 65. Specifically, Proposition 65 requires that the “private action [must await its commencement for at least] 60 days from the date that the person has given notice of an alleged violation.” (Health & Safety § 25249.7.) The notice must include a copy of the “Safe Drinking Water and Toxic Enforcement Act of 1986” and a description of the violation. (Cal. Code Regs., tit. 27, § 25903(b).) The description of the violation shall include “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity . . .” (Cal. Code Regs., tit. 27, § 25903(b)(2)(A).) “Failure to comply with the presuit notice requirements is grounds for dismissal . . .” (Council for Education & Research on Toxics v. Starbucks Corp. (Starbucks Corp.) (2022) 84 Cal.App.5th 879, 900.)
Defendants contend that Plaintiff’s notice was insufficient because it stated that Plaintiff was the noticing individual, but provided the name, address, and telephone number for Plaintiff’s attorney. The key considerations for adequate notice are “(1) whether the requirements of section 12903 are satisfied; (2) whether the notice is sufficiently specific to permit the Attorney General and accused a meaningful opportunity to investigate; and (3) whether the notice is sufficiently specific to permit the accused a meaningful opportunity to cure.” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (Kintetsu) (2007) 150 Cal.App.4th 953, 966.)
The parties dispute whether giving attorney contact information for a represented noticing individual is sufficient compliance with Proposition 65. Defendants contend strict compliance is required. Plaintiff responds that only substantial compliance is required, and that Plaintiff’s attorney is the appropriate individual to be named in the notice.
Strict compliance may be inferred when the governing law (1) provides a detailed and specific mandate or (2) the governing law’s purpose can be met only by enforcing strict compliance with the law’s terms. (Prang v. Los Angeles Cnty. Assessment Appeals Bd. No. 2 (2020) 54 Cal.App.5th 1, 19.) Here, the regulation lacks a “detailed and specific mandate” for strict compliance. Instead, the regulation states “[t]he provisions of this paragraph shall not be interpreted to require more than reasonably clear information….” (Cal. Code Regs., tit. 27, § 25903(b)(2).) This language suggests strict compliance is not required.
Moreover, and in the same vein, Proposition 65 case law supports substantial compliance. In Kintetsu, the plaintiff provided notice to hundreds of hotels and retail establishments for exposure to secondhand smoke. Kintetsu analyzed whether the notices were sufficient by considering whether the notices permitted the recipients to understand the nature of the alleged violation. Kintetsu stated the notice “requirements ‘shall not be interpreted to require more than reasonably clear information, expressed in terms of common usage and understanding, on each of the indicated topics.” (§ 12903, subd. (b)(2)(C).) Subdivision (b) lists the general requirements: a specified attachment summarizing Proposition 65; description of the violation; the name of the noticing entity; the name of the alleged violator; the approximate time period for the violation; the name of each chemical involved in the alleged violation; and the route of exposure.” (Kintetsu at p. 964.)
In Yeroushalmi v. Miramar Sheraton (Yeroushalmi), the appellate court examined several pre-suit notices. The plaintiffs in that case alleged that they had substantially complied with the regulation but the appellate court found as a factual matter that a notice was not in substantial compliance because “it fails to provide adequate, or indeed, any information to assess the nature of the alleged violation.” (88 Cal.App.4th 738, 746-747.) The appellate court did not, however, hold that strict compliance was the standard. (Ibid. at pp. 745.)
The pre-suit notice requirement aims before a noticing-party files a lawsuit to provide an opportunity for either pre-lawsuit resolution of the dispute or for a public agency to assume enforcement under Proposition 65. In the absence of an express statement in Proposition 65 or in case law requiring strict compliance, the court declines to interpret Proposition 65 in a way that invites defense counsel to step into the ethical minefield of directly contacting a represented noticing-party and interfering with a noticing-party’s right to retain counsel. Providing an attorney’s contact information is sufficient to permit communication with a noticing-party who elects to have an attorney speak for the noticing-party.
CONCLUSION
The Court overrules Defendants’ demurrer.
Defendants shall file their answer within 20 days.
Defendants to give notice.