Judge Gail Killefer, Case Number: 22STCV38483, Date: 2024-03-18 Tentative Ruling

MOVING PARTY: Defendants Walmart, Inc.;Walmart.com USA, LLC; and Kreassive, Inc.; Kreassive, LLC

On December 9, 2022, Consumer Advocacy Group, Inc. (“Plaintiff”) filed a Complaint against Walmart, Inc.; Walmart.com USA, LLC; Kreassive, Inc.; Kreassive, LLC; Jeollanam-Do Los Angeles Trade Office, Inc.; and Does 1 to 20 for Violation of the Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health Saf. Code § 25249.5. et seq.)

Defendants Kreassive, Inc. and Jeollanam-Do Los Angeles Trade Office, Inc. were dismissed as Defendants on November 28, 2023.

On February 20, 2024, Defendants Walmart, Inc.; Walmart.com USA, LLC; and Kreassive, LLC (collectively “Defendants”) filed a motion for judgment on the pleadings (“MJOP”). Plaintiff opposes the Motion. The matter is now before the court.

motion for judgment on the pleadings

“A motion for judgment on the pleadings performs the same function as a general demurrer, and hence attacks only defects disclosed on the face of the pleadings or by matters that can be judicially noticed.” (Burnett v. Chimney Sweep (2004) 123 Cal.App.4th 1057, 1064.) “In deciding or reviewing a judgment on the pleadings, all properly pleaded material facts are deemed to be true, as well as all facts that may be implied or inferred from those expressly alleged.” (Fire Ins. Exchange v. Superior Court (2004) 116 Cal.App.4th 446, 452.) When considering demurrers and judgment on the pleadings, courts read the allegations liberally and in context. (Wilson v. Transit Authority of City of Sacramento (1962) 199 Cal.App.2d 716, 720-21.) A motion for judgment on the pleadings does not lie as to a portion of a cause of action. (Id.) “In the case of either a demurrer or a motion for judgment on the pleadings, leave to amend should be granted if there is any reasonable possibility that the plaintiff can state a good cause of action.” (Gami v. Mullikin Medical Ctr. (1993) 18 Cal.App.4th 870, 876.) A non-statutory motion for judgment on the pleadings may be made any time before or during trial. (Stoops v. Abbassi (2002) 100 Cal.App.4th 644, 650.)

The court may take judicial notice of “official acts of the legislative, executive, and judicial departments of the United States and of any state of the United States,” “[r]ecords of (1) any court of this state or (2) any court of record of the United States or of any state of the United States,” and “[f]acts and propositions that are not reasonably subject to dispute and are capable of immediate and accurate determination by resort to sources of reasonably indisputable accuracy.” (Evid. Code, § 452, subds. (c), (d), and (h).) “Taking judicial notice of a document is not the same as accepting the truth of its contents or accepting a particular interpretation of its meaning.” (Joslin v. H.A.S. Ins. Brokerage (1986) 184 Cal.App.3d 369, 374.)

1) The 60-Day Pre-Suit Notice of Violation that Plaintiff served on Walmart Inc., Walmart.com, Jeollanam-do Los Angeles Trade Office, Inc., Kreassive, Inc., Kreassive, LLC, Palos Buddies, the Attorney General, and others on or about May 26, 2022. The notice is an official public record on file with the AG and is publicly available at: https://oag.ca.gov/system/files/ prop65/notices/2022-01076.pdf. (Exhibit 1.)

2) The 60-Day Pre-Suit Notice of Violation that Plaintiff served on Walmart Inc., Wal-Mart Stores, Inc., Wal-Mart.com USA, LLC, Sunil Products Co., Ltd., Sunilmulsan Co., Ltd., Kreassive, Inc., Kreassive, LLC, the Attorney General, and others on or about June 10. 2022. The notice is an official public record on file with the Attorney General and is publicly available at: https://oag.ca.gov/system/files/prop65/notices/2022-01234.pdf. (Exhibit 2.)

3) The 60-Day Pre-Suit Notice of Violation that Center for Environmental Health served on Sweaty Betty Limited, Lady of Leisure Holdings Limited, and Wolverine World Wide, Inc., the AG, and others on or about May 17, 2023. The notice is an official public record on file with the Attorney General and is publicly available at https://oag.ca.gov/system/files/prop65/notices/2023- 01321.pdf. (Exhibit 3.)

4) The 60-Day Pre-Suit Notice of Violation that CalSafe Research Center, Inc. served on Texas Star Nut and Food Co., Inc. and Big Lots Stores, LLC, the Attorney General, and others on or about May 25, 2023. The notice is an official public record on file with the Attorney General and is publicly available at https://oag.ca.gov/system/files/prop65/notices/2023-01460.pdf. (Exhibit 4.)

5) The 60-Day Pre-Suit Notice of Violation that Keep America Safe and Beautiful served on Allied Rubber & Gasket Co., Inc., the Attorney General, and others on or about October 24, 2023. The notice is an official public record on file with the Attorney General and is publicly available at https://oag.ca.gov/system/files/prop65/notices/2023-03283.pdf. (Exhibit 5.)

6) The 60-Day Pre-Suit Notice of Violation that Environmental Health Advocates, Inc. served on Wax Center Partners Intermediate Holdco LLC, T.J. Maxx of CA, LLC, European Wax Center, Batallure Beauty, LLC, EWC P&T, LLC, the Attorney General, and others on or about August 3, 2023. The notice is an official public record on file with the Attorney General and is publicly available https://oag.ca.gov/system/files/prop65/notices/2023-02382.pdf. (Exhibit 6.)

7) The 60-Day Pre-Suit Notice of Violation that Environmental Health Advocates, Inc. served on General Mills, Inc., Walmart Inc., the Attorney General, and others on or about June 4, 2020. The notice is an official public record on file with the Attorney General and is publicly available at https://oag.ca.gov/system/files/prop65/notices/2020-01321.pdf. (Exhibit 7.)

8) The Office of Environmental Health Hazard Assessment’s (“OEHHA”) Final Statement of Reasons to Adopt Section 12903 Notices of Violation into the California Code of Regulations (“FSOR”), published on May 14, 1997. OEHHA published the FSOR to provide its official position on the adoption of a proposed regulation implementing California’s Proposition 65. (See Cal. Evid. Code § 452(b), (c), (h); As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 438 n.3 [taking judicial notice of initial statement of reasons and proposed amendments of a rule under Proposition 65].) (Exhibit 8.)

9) The Complaint filed on October 16, 2020, in Environmental Health Advocates, Inc. v. General Mills, Inc., et al., Alameda Superior Court Case No. HG20077077. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 9.)

10) The Amendment to Complaint filed on February 26, 2021, in Environmental Health Advocates, Inc. v. General Mills, Inc., et al., Alameda Superior Court Case No. HG20077077. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 10.)

11) The Order Relating Cases and Partially Staying Actions filed on January 20, 2022, in Environmental Health Advocates, Inc. v. General Mills, Inc., et al., Alameda Superior Court Case No. HG20077077. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 11.)

12) The Final Judgment entered on or about August 8, 2023 in Environmental Health Advocates, Inc. v. General Mills, Inc., et al., Alameda Superior Court Case No. HG20077077. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 12.)

13) The Order Sustaining Demurrer filed by Goya Foods, Inc. and Walmart Inc., filed on November 29, 2023 in Environmental Health Advocates, Inc. v. Goya Foods, Inc., et al., Alameda Superior Court Case No. 23CV036311. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 13.)

14) The Order Granting the Motion for Judgment on the Pleadings filed by M&S Commerce, Inc. and Selah Gourmet Food Inc. and entered on or about December 14, 2023 in Environmental Health Advocates, Inc. v. M&S Commerce, Inc., et al., Alameda Superior Court Case No. 22CV007603. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 14.)

15) The Judgment Granting Defendants Walmart Inc. and Wal-Mart.com, Inc.’s Motion for Judgment on the Pleadings entered on or about January 19, 2024 in Consumer Advocacy Group, Inc. v. Walmart Inc., et al., Los Angeles Court Case No. 22STCV21493. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 15.)

16) The Order Granting Defendant Santa Maura Spice and Garlic Co., Inc.’s Motion for Judgment on the Pleadings entered on or about February 8, 2024 in Consumer Advocacy Group, Inc. v. Foodland Market, et al., Los Angeles Court Case No. 19STCV18754. The Court should take judicial notice of this document because it is a record of the Alameda Superior Court. (Cal. Evid. Code § 452(d)(1).) (Exhibit 16.)

17) The California Attorney General’s letter to The Honorable Presiding Justice Ignazio Ruvolo and the Associate Justices of the Court of Appeal, First District, concerning the pre-suit notices in Urban Outfitters, Inc. and Urban Outfitters West LLC v. Alameda County Superior Court, dated October 30, 2008. This letter is an official public record on file with the Attorney General (“AG”) and is publicly available on the AG’s website at https://oag.ca.gov/system/files/media/CEH %20jewelry%20notice%20letter.pdf. (See Cal. Evid. Code § 452(c); Crusilla, supra, 77 Cal.App.4th at 147 [taking judicial notice of publication by California AG’s Office].) (Exhibit 17.)

18) The California Attorney General’s letter to Proposition 65 Private Plaintiffs and Counsel, dated July 10, 2012. This letter is an official public record on file with the Attorney General (“AG”) and is publicly available on the AG’s website at: https://oag.ca.gov/sites/all/files/a gweb/pdfs/prop65/prop65releases_cases.pdf. (See Cal. Evid. Code § 452(c); Crusilla, supra, 77 Cal.App.4th at 147 [taking judicial notice of publication by California AG’s Office].) (Exhibit 18.)

The court rejects Defendants’ subsequent request for judicial notice as Defendants’ sought notice on reply. “The salutary rule is that points raised in a reply brief for the first time will not be considered unless good cause is shown for the failure to present them before.” (Balboa Ins. Co. v. Aguirre (1983) 149 Cal.App.3d 1002, 1010.)

1) Consumer Advocacy Group, Inc.’s Appellate Brief in CAG v. Kintetsu Enterprises Company of America, et al. (JCCP 4182). (Exhibit 1).

2) Minute Order DATED April 8, 2021 in Proposition 65 Rice Product Cases (Case No. Judicial Council Coordinated Proceedings (JCCP) 4816) (Exhibit 2)

3) The Final Statement of Reasons (“FSOR”) Section 12903, Notices of Violation, Title 22, Division 2, California Code of Regulations; now Section 25903, Title 27, California Code of Regulations. (Exhibit 3).

4) Senate floor analysis dated September 26, 2001 of Bill Number: SB-471 Proposition 65: toxic chemicals. (Exhibit 4).

5) Order re: Hearing on Motion for Judgment on the Pleadings in Environmental Health Advocates, Inc. v. Segway, Inc., et al. Case Number: 22CV009788. (Exhibit 5).

6) Hearing on Demurrer – without Motion to Strike; Hearing on Demurrer – without Motion to Strike; Hearing on Demurrer – without Motion to Strike; Hearing on Motion to Bifurcate; Hearing on Motion to Bifurcate in Consumer Advocacy Group, Inc. v. Tawa Supermarket, Inc., et al. Case Number BC634011 (Exhibit 6).

7) Respondents 7-Eleven, Inc., Wal-Mart Stores, Inc., Sam’s Club, Circle K Stores, Inc., and Tosco Corporation’s Appellate Brief in CAG v. Kintetsu Enterprises Company of America, et al. (JCCP 4182). (Exhibit 7).

8) Order re: Case Management Conference; Hearing on Motion for Judgment on the Pleadings in Kim Embry v. B&G Food North America, Inc., et al. (Case No. RG20057491). (Exhibit 8).

9) Proposition 65 60-Day Notice of Violation (“Notice”), issued by SHEFA LMV, INC., dated October 24, 2018 (AG Number: 2018-02369). (Exhibit 9).

10) Letter from Attorney General Daniel E. Lungren dated June 12, 1995 re: Proposition 65 Notice to Harve Bernard Ltd regarding exposures to Perchloroethylene. (Exhibit 10).

11) Letter from Attorney General Daniel E. Lungren dated September 11, 1997 re: Corporation for Clean Air v. Bekins Moving and Storage et al. and Corporation for Clean Air v. General Motors Corporation et al. (Exhibit 11).

12) Minute Order re: Ruling on Submitted Matter Re: Demurrer and Joinder, dated April 4, 2023, in The Chemical Toxin Working Group, Inc. v. California Olive Ranch, Inc. (Case No. 22STCV33703). (Exhibit 12).

13) Request for Judicial Notice No. 13: List of all Notices of Violation sent by private enforcers, accessible through the Attorney General’s website: https://oag.ca.gov/prop65/60-day-notice-searchresults?combine=&combine_1=&field_prop65_defendant_value=&date_filter%5Bmin%5D%5Bdate%5D=01%2F01%2F2003&date_filter%5Bmax%5D%5Bdate%5D=12%2F31%2F2020&fiel d_prop65_product_value=&sort_by=field_prop65_id_value&items_per_page=100.

The court rejects Plaintiff’s request for judicial notice as to Exhibits 1 and 7 as they relate to appellate briefs. Plaintiff fails to show that the appellate briefs present facts and proposition not subject to dispute and not require formal proof. (See Lockley v. Law Office of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875, 882.) In People v. Reyes (2020) 56 Cal.App.5th 972, the appellate court too notice that the reply brief had been filed a day late but did not take judicial notice of the contents of the brief. (Id. at p. 981, fn. 6.) Moreover, Exhibit 13 is not attached to Plaintiff’s request for judicial notice.

Accordingly, Plaintiff’s request for judicial notice is denied as to Exhibits 1, 7, and 13, but is otherwise granted.

CCP § 439 requires the moving party to meet and confer in person or by telephone with the party who filed the pleading before filing a motion for judgment on the pleadings. Defendants’ counsel failed to file a declaration summarizing the parties' meet and confer efforts. “A determination by the court that the meet and confer process was insufficient shall not be grounds to grant or deny the motion for judgment on the pleadings.” (CCP § 439(a)(4).) The court has the discretion to continue the hearing and order the parties to meaningfully meet and confer prior to this hearing. (See Dumas v. Los Angeles County Bd. of Supervisors (2020) 45 Cal. App. 5th 348, 355.) However, the court will proceed to address the Motion on the merits.

Defendants move for a judgment on the pleadings on the basis that Plaintiff failed to serve pre-suit Notices of Violation that comply with Cal. Code Regs. § 25903.

(1) General Information. Each notice shall include as an attachment a copy of “The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary” (see Appendix A) prepared by the lead agency. This attachment need not be included in the copies of notices sent to public enforcement agencies. A copy of this attachment may be obtained by writing to the Office of Environmental Health Hazard Assessment at P.O. Box 4010, Sacramento, CA 95812-4010.

(2) Description of Violation. A notice shall provide adequate information from which to allow the recipient to assess the nature of the alleged violation, as set forth in this paragraph. The provisions of this paragraph 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.

1. the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity;

3. the approximate time period during which the violation is alleged to have occurred; and

Defendants assert that Plaintiffs’ Pre-Suit Notices fail to strictly comply with Proposition 65 because instead of identifying “the name address, and telephone number . . . [of] a responsible individual within the noticing entity,” Plaintiff’s provided the contact information of its attorney Ruben Yeroushalmi as its “designated person” despite Plaintiff’s counsel not being an individual “within the noticing entity” because he is outside counsel working for a private firm. (See Cal. Code Regs. § 25903(b)(2)(A)(1).)

Plaintiff does not dispute that the Pre-Suit Notices contained only the contact information of its counsel. First, Plaintiff asserts Defendants misconstrue the requirement that the individual be someone “within the noticing entity” to mean that the individual must specifically be an officer, director, or employee of Plaintiff. While the court agrees that Defendants fail to cite any statutory language that limits the noticing individual to an officer, director, or employee of the noticing party, Plaintiffs similarly fail to cite case law or any statutory language that would support the proposition that outside counsel would constitute an individual “within the noticing entity.” (Cal. Code Regs., tit. 27, § 25903(b)(2)(A)(1).) Accordingly, the Plaintiffs fail to show that Plaintiff’s counsel can be considered “a responsible individual within the noticing entity” sufficient to comply with the requirements of section 25903(b)(2)(A)(1).

Second, Plaintiffs argue that Proposition 65’s pre-suit notice requires only substantial compliance rather than strict compliance. Defendants assert that because the language of section 25903 is not ambiguous, the court cannot analyze the purpose of the statute. “‘If the language is clear, courts must generally follow its plain meaning unless a literal interpretation would result in absurd consequences the Legislature did not intend. If the statutory language permits more than one reasonable interpretation, courts may consider other aids, such as the statute's purpose, legislative history, and public policy.’” (Meda v. Autozone, Inc. (2022) 81 Cal.App.5th 366, 378.)

Section 25903(b)(2)(A)(1) requires the pre-suit notice to include the contact information of either “the noticing individual or a responsible individual within the noticing entity.” Defendants fail to explain why Plaintiffs’ counsel cannot be “the noticing individual” whose contact information is provided in the pre-suit notices. Defendants maintain that in drafting Proposition 65’s notice requirement, as codified in section 25903, the Office of Environmental Health Hazard Assessment (OEHHA) intended the information provided to be that the party giving notice, not their attorney, to allow the parties to contact the noticing party directly to resolve the issue. (Defendants’ RJN Ex. 8 at p. 3; Plaintiff’s RJN Ex. 3 at p. 3.) Accordingly, there is ambiguity as to whether the “noticing individual” can be the noticing party’s attorney or outside counsel and the court can analyze the statute’s purpose and history.

Defendants’ request for judicial notice Exhibit 8 and Plaintiffs’ Request for judicial notice Exhibit 3 pertains to the OEHHA’s Final Statement of Reasons to Adopt Section 12903 Notices of Violation into the California Code of Regulations (“FSOR”), published on May 14, 1997.^{^[1]} According to OEHHA’s FSOR:

Proposition 65’s notice provision appears to be modeled generally after similar ‘citizen suit/60- day notice’ provisions of certain federal environmental laws, such as the Clean Water Act. (See 33 U.S.C. § 1365(b)(1)(A).)

(Defendants’ RJN Ex. 8 at p. 3; Plaintiff’s RJN Ex. 3 at p. 3.) OEHHA’s FSOR cited Public Interest Research Group of New Jersey, Inc. v. Hercules, Inc. (3d Cir. 1995) 50 F.3d 1239, 1249, in which the Third Circuit stated:

In deciding whether to initiate an enforcement action, the EPA and the state must be provided with enough information to enable them intelligently to decide whether to do so. At the same time, the alleged violator must be provided with enough information to be able to bring itself into compliance. We will judge the sufficiency of the plaintiffs' 60–day notice letter in terms of whether it accomplishes these purposes.

(See Defendants’ RJN Ex. 8 at p. 3; Plaintiff’s RJN Ex. 3 at p. 3.) The Third Circuit rejected the argument that the 60-Day Notice requirement under the Clean Water Act required strict compliance with the contents of the notice. The Third Circuit noted:

The regulation does not require that the citizen identify every detail of a violation. Rather, it states that ‘[n]otice regarding an alleged violation ... shall include sufficient information to permit the recipient to identify’ the components of an alleged violation. 40 C.F.R. § 135.3(a) (emphasis added).

We read the regulation to require just what it says: that the citizen provide enough information to enable the recipient, i.e., Hercules, EPA and/or the State, to identify the specific effluent discharge limitation which has been violated, including the parameter violated, the date of the violation, the outfall at which it occurred, and the person or persons involved.

(Public Interest Research Group of New Jersey, Inc., supra, (3d Cir. 1995) 50 F.3d at pp. 1247–1248.)

The Ninth Circuit has similarly construed the requirements of the Clean Water Act to require substantial compliance rather than strict compliance with the notice requirements. “However, in recent years some courts have taken a more liberal interpretation of the notice requirements.” (Community Ass'n for Restoration of the Environment v. Henry Bosma Dairy (9th Cir. 2002) 305 F.3d 943, 950; see also Natural Resources Defense Council v. Southwest Marine, Inc. (9th Cir. 2000) 236 F.3d 985, 997.)

California courts have similarly found Proposition 65’s notice requirements are analogous to those of the Clean Water Act and The Clean Air Act:

It is likely that the framers of Proposition 65 were aware of the analogous federal authorities, and intended the same construction to be placed upon the provisions similar to those found in the federal Clean Air Act and Clean Water Act. We thus conclude that the framers of the initiative intended that the notice contain sufficient facts to facilitate and encourage the alleged polluter to comply with the law, and to encourage the public attorney charged with enforcement to undertake its duty.

(Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, 750 [italics added].)

In Sciortino v. Pepsico, Inc. (N.D. Cal. 2015) 108 F.Supp.3d 780, the federal district court noted:

California courts have compared the Proposition 65 notice provisions to the notice provisions in environmental statutes, such as the Resource Conservation and Recovery Act, the Clean Water Act, and the Clean Air Act, which serve ‘to encourage public enforcement, thereby avoiding the need for a private lawsuit altogether, and to encourage resolution of disputes outside the courts.’ [Citation.] The Proposition 65 notice requirements ‘reflect the same intent to further settlement and public enforcement by requiring adequate information from which to allow the recipient to assess the nature of the alleged violation.’ [Citations]

Like the Clean Water Act, Proposition 65’s notice requirement seeks strict compliance with the requirement to provide notice, but as illustrated above, the contents of 60-Day Notice itself are not strictly construed and notice is deemed sufficient if there is substantial compliance and provides sufficient notice to the offending entity.

Given that the contents of the 60-day notice are not strictly construed, the court finds that Plaintiff substantially complied with the 60-day notice requirement by providing the contact information of its counsel. “[A] attorneys are agents of their client[.]” (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 283.) As the Plaintiff’s notice identified the person who sent the notice and provided a means to communicate with that person, there was substantial compliance. Moreover, the court is not persuaded that the fact Plaintiff provided the contact information of its attorney rather than an individual within Plaintiff’s organization, hindered Defendants’ ability to investigate and cure the alleged violation(s).

“Collateral estoppel, or issue preclusion, precludes relitigation of issues argued and decided in prior proceedings.” (Mycogen Corp. v. Monsanto Co. (2002) 28 Cal.4th 888, 889.) “Issue preclusion prohibits the relitigation of issues argued and decided in a previous case, even if the second suit raises different causes of action. [Citation.] Under issue preclusion, the prior judgment conclusively resolves an issue actually litigated and determined in the first action. [Citation.] There is a limit to the reach of issue preclusion, however. In accordance with due process, it can be asserted only against a party to the first lawsuit, or one in privity with a party. [Citation.]” (DKN Holdings LLC, supra, 61 Cal.4th at p. 824 [italics original].) “Issue preclusion differs from claim preclusion in two ways. First, issue preclusion does not bar entire causes of action. Instead, it prevents relitigation of previously decided issues. Second, unlike claim preclusion, issue preclusion can be raised by one who was not a party or privy in the first suit.” (Ibid.)

Defendants assert that issue preclusion applies because prior trial cases have already addressed the issue of whether section 25903(b)(2)(A)(1) requires strict compliance. (See Defendants’ RJN Ex. 12, 13, 14, 16.) The court agrees that when an environmental group brings a suit on behalf the public and do not have an individual property right in the action, the group can be found to be in privity with other environmental groups for purposes of issue preclusion. (See Consumer Advocacy Group, Inc. v. ExxonMobil Corp. (2008) 168 Cal.App.4th 675, p. 689-693 [finding environmental group was in privity with a different environmental group that settled the prior action against the same defendant, when the group did not have an individual property right in the suit and was vindicating the public's rights].) However, the court disagrees that issue preclusion applies.

Plaintiff cites other cases wherein other trial courts have found that substantial compliance is sufficient. (Plaintiffs’ RJN Ex. 2, 6, 12.) Accordingly, there is a split as to whether section 25903(b)(2)(A)(1) requires strict compliance. Moreover, Defendants fail to show that the item or product at issue in the pre-suite notices in this action, seaweed containing cadmium, concerned the items and products in the other suits against Defendants. (Defendants’ RJN Ex. 1, 2.) Therefore, the court is not persuaded that the issues presented in this action are identical to the issues litigated in the other actions such that issue preclusion applies.

[1] The Final Statement of Reasons is accessible at: https://oehha.ca.gov/proposition-65/law/proposition-65-law-and-regulations. Courts may take judicial notice of information published on official government websites. (See People v. Morales (2018) 25 Cal.App.5th 502, 512, fn, 7; Wood v. Superior Ct. of San Diego County (2020) 46 Cal.App.5th 562, 580, fn. 2; see also As You Sow v. Conbraco Industries (2005) 135 Cal.App.4th 431, 438, fn. 3 [taking judicial notice of OEHHA’s initial statement of reasons detailing the substance of the proposed amendments to Proposition 65].)