Judge Holly J. Fujie, Case Number: 24STCV16621, Date: 2025-03-20 Tentative Ruling

DEPARTMENT 56 JUDGE HOLLY J. FUJIE, LAW AND MOTION RULINGS. The court makes every effort to post tentative rulings by 5.00 pm of the court day before the hearing. The tentative ruling will not become the final ruling until the hearing [see CRC 3.1308(a)(2)], and are also available in the courtroom on the day of the hearing [see CRC 3.1308(b)]. 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) call Dept 56 by 8:30 a.m. on the day of the hearing (213/633-0656) 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 telephone call is necessary and all parties should appear at the hearing in person or by Court Call. Court reporters are not provided, and parties who want a record of motions and other proceedings must hire a privately retained certified court reporter.

This is a private enforcement action pursuant to Prop. 65. On July 3, 2024, Plaintiff filed the operative complaint (the “Complaint”) against Defendants and Does 1 through 100 alleging causes of action for: (1) injunctive relief; and (2) civil penalties.

On December 6, 2024, Defendant filed the instant demurrer (“Demurrer”) to each of the two causes of action stated in the Complaint on the grounds that that the pre-suit notice of violation required by California Health and Safety Code section 25249.6 et seq. (“Proposition 65”), which forms the basis of Plaintiff’s complaint in this action, failed to comply with Proposition 65’s strict pre-suit notice requirements.. On March 4, 2025, Plaintiff filed an opposition (“Opposition”) and on March 13, 2025, Defendant filed a reply (“Reply”).

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 of Civil Procedure (“CCP”) § 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 (1983) 35 Cal.3d 197, 212, superseded by statute as stated in Branick v. Downey Savings & Loan Assn.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.)

Defendant’s demurrer challenges the sufficiency of Plaintiff’s pre-lawsuit sixty-day notice of intent to sue for a violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 pursuant to Cal. Health & Safety Code § 25249.5, et seq., colloquially known as “Proposition 65”. Plaintiff’s notice is filed as Exhibit A to Defendant’s Request for Judicial Notice in Support of Demurrer to Plaintiff’s Complaint for Injunctive Relief and Civil Penalties. Opinions have affirmed sustaining of demurrers, without leave to amend, on the ground of plaintiffs’ failures to comply with Proposition 65 notice requirements. (See, e.g., Physicians Committee for Responsible Medicine v. Applebee's International, Inc. (2014) 224 Cal.App.4th 166, 181.)

The framers of Proposition 65 intended notices containing sufficient facts to facilitate and encourage the alleged polluter to comply with law and to encourage public attorneys to undertake enforcement, and the regulations reflect the same intent by requiring adequate information to allow assessment of the nature of alleged violations. (Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738, 750 (citing Cal.Code Regs., tit. 22, § 12903, subd. (b)(2)). See also Ctr. for Self-Improvement & Cmty. Dev. v. Lennar Corp. (2009) 173 Cal.App.4th 1543, 1555 (citing cases addressing Proposition 65 notice sufficiency).)

As to Proposition 65, “[f]ailure to provide 60–day notices which comply with requirements of The Act does bar plaintiffs' action.” (In re Vaccine Cases (2005) 134 Cal.App.4th 438, 458. See also Council for Educ. & Rsch. on Toxics v. Starbucks Corp., 84 Cal. App. 5th 879, 900 (2022), reh’g denied (Nov. 10, 2022), review denied (Feb. 15, 2023) (“Failure to comply with pre-suit notice requirements is grounds for dismissal, and deficiencies cannot be cured after the complaint is filed.”) (citation omitted); Yeroushalmi v. Miramar Sheraton, 88 Cal. App. 4th 738, 746 (2001) (rejecting private enforcer’s argument that private enforcement action could proceed on the basis that its pre-suit notices “substantially complied” with the regulation).)

“[W]here an alleged violation is clear and specific, the existence of extra, inapplicable violations does not, without more, render the notice invalid.” (Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 966.)

Proposition 65’s implementing regulations state that for purposes of Section 25249.7(d) of the Act, “notice of the violation which is the subject of the action (hereinafter ‘notice’) shall mean a notice meeting all requirements of this section. No person shall commence an action to enforce the provisions of the Act ‘in the public interest’ pursuant to Section 25249.7(d) of the Act except in compliance with all requirements of this section. Cal. Code Regs., tit. 27, § 25903(a). Notices ‘shall identify’ the name and contact information of ‘a responsible individual within the noticing entity[.]’” Id. at Section 25903(b)(2)(A)(1).

Here, Defendants allege that Plaintiff did not comply with the statutory notice requirements because: 1) Plaintiff’s Notice fails to identify the address and telephone number of the noticing individual as required by the Regulations; 2) Plaintiff failed to attach a copy of “The Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65): A Summary” (the “Summary”) as required by Cal. Code Regs. Tit. 27, § 25903(b)(1); and 3) Plaintiff failed to address the Notice to the CEO, President or General Counsel of CVS. These defects cannot be retroactively cured and are inconsistent with the remedial purpose of notice as the notice is “the key to due process” for alleged violators who face penalties of up to $2,500 per violation. (Kintetsu, 150 Cal. App. 4th at 963.)

Plaintiff argues that he strictly complied with the pre-suit notice requirements because he provided his personal phone number along with the address of his counsel and Plaintiff allowed the parties the opportunity to resolve the issues in the Complaint. Additionally, Plaintiff did attach a copy of the Summary referenced above, and also addressed the notice to Defendant’s “legal counsel.” Here, the Court agrees with Plaintiff that the pre-suit notice strictly complied with the statute’s notice requirements in that it contained sufficient facts to facilitate and encourage the alleged polluter to comply with the law, encourage public attorneys to undertake enforcement, and allow assessment of the nature of alleged violations. Defendant’s demurrer is OVERRULED.

Parties who intend to submit on this tentative must send an email to the Court at SMC_DEPT56@lacourt.org as directed by the instructions provided on the court website at www.lacourt.org. If the department does not receive an email and there are no appearances at the hearing, the motion will be placed off calendar.

Hon. Holly J. Fujie

Judge of the Superior Court