Judge Joel R Wohlfeil, Case Number: 37-2021-00034211-CU-MC-CTL, Date: 2024-05-31 Tentative Ruling

Judge: Joel R Wohlfeil, Case: 37-2021-00034211-CU-MC-CTL, Date: 2024-05-31 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - May 28, 2024

05/31/2024 09:00:00 AM C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited Misc Complaints - Other Motion Hearing (Civil) 37-2021-00034211-CU-MC-CTL ENVIRONMENTAL HEALTH ADVOCATES INC VS PANCHO VILLAS INC [IMAGED] CAUSAL DOCUMENT/DATE FILED: Motion for Judgment on the Pleadings, 04/15/2024

The Motion (ROA # 150) of Defendant PANCHO VILLA'S, INC. ('Defendant Pancho Villa') for judgment on the pleadings of the entire Complaint, is GRANTED.

The 'Joinder' (ROA # 155) of Defendant AREA 51 MEXPROD, INC. ('Defendant Area 51') is GRANTED for this Defendant also.

These rulings are dispositive and Defendants Pancho Villa and Area 51 are entitled to entry of a judgment in their favor.

These rulings are premised on the analysis set forth below: Defendant's Request (ROA # 153) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of the dates only on which Exh's '1, 2, 10 - 13 were served on the recipients; otherwise, the Request is DENIED.

Plaintiff's Request (ROA # 159) for judicial notice is GRANTED IN PART and DENOIED IN PART. The Court takes judicial notice of Exh's 'A, C, E, G, M and N' and the date only on which Exh's 'K and L' were served on the recipients; otherwise, the Request is DENIED.

Defendant's objections (ROA # 162) are OVERRULED.

I. Procedural Issue: Meet and Confer Before filing a Motion for judgment on the pleadings, the moving party must engage in a meet and confer process. Code Civ. Proc. 439.

However, '[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.' Id. at (a)(4).

Thus, even assuming Defendant did not comply with this procedure, this is not a basis to deny this motion. At most, the Court could continue this Motion to permit the parties time to meet and confer.

However, the opposition does not seek this remedy.

Also, given the defective pre-suit notices, any meet and confer would be futile.

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3115591 CASE NUMBER: CASE TITLE: ENVIRONMENTAL HEALTH ADVOCATES INC VS PANCHO 37-2021-00034211-CU-MC-CTL II. Substantive Issue: Pre-Suit Notice A Proposition 65 action may give rise to a civil penalty 'not to exceed ... $2,500 ... per day for each violation in addition to any other penalty established by law. Health & Saf. Code 25249.7(b).

Notice is a mandatory precondition to a lawsuit brought by a citizen to enforce Proposition 65.

Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal. App. 4th 953, 963.

'In sum, we consider Proposition 65 to be a remedial statute intended to protect the public from, among other things, toxic contamination of its drinking water. We construe the statute broadly to accomplish that protective purpose.' People ex rel. Lungren v. Superior Court (1996) 14 Cal. 4th 294, 314.

Before filing suit, a private citizen must serve a compliant 'notice of alleged violation . . . that is the subject of the private action to the Attorney General and the district attorney, city attorney, or prosecutor in whose jurisdiction the violation is alleged to have occurred, and to the alleged violator,' along with an accompanying certificate of merit. Health & Saf. Code 25249.7(d)(1).

Before bringing a Prop. 65 action in the public interest, a private Plaintiff must provide a pre-suit notice containing sufficient information about the claim to (1) the Attorney General and other public prosecutors, to allow them to adequately investigate the claim's basis, and (2) the alleged violator, to allow it an opportunity to cure the violation. Council for Education & Research on Toxics v. Starbucks Corp. (2022) 84 Cal. App. 5th 879, 899.

Failure to comply with pre-suit notice requirements is grounds for dismissal, and deficiencies cannot be cured after the complaint is filed. Id. at 900.

The framers of Proposition 65 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. Consumer Defense Group v. Rental Housing Industry Members (2006) 137 Cal. App. 4th 1185, 1210 (quoting Yeroushalmi v. Miramar Sheraton (2001) 88 Cal. App. 4th 738, 750).

California regulations reflect the 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. Id. at 1211.

A. Appendix A (� 25903(b)(1)) The Proposition 65 implementing regulations detail the information that must be provided within this notice. See 27 C. C. R. 25903.

The notice of violation must meet all requirements of this section, and '[n]o person shall commence an action to enforce the provisions of the Act ... except in compliance with all requirements of this section.' Id. at (a).

'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.' Id. at (b)(1).

Plaintiff EHA's original pre-suit notice is dated September 1, 2020 and attached a copy of a superseded version of the Appendix A summary. This Appendix A summary was revised in May 2017. Plaintiff EHA's amended pre-suit notice is dated September 21, 2021 and attached a copy of the current version Calendar No.: Event ID: TENTATIVE RULINGS

3115591 CASE NUMBER: CASE TITLE: ENVIRONMENTAL HEALTH ADVOCATES INC VS PANCHO 37-2021-00034211-CU-MC-CTL (May 2017 revision) of the Appendix A summary. The amended pre-suit notice was the first notice naming Defendant Area 51 Mexprod, Inc. The amendment to the Complaint naming Area 51 Mexprod was filed more than 60 days after the amended notice. Thus, no Appendix A defect exists for Defendant Area 51 Mexprod.

Regarding Defendant Pancho Villa, there are material omissions within the superseded Appendix A summary (Ex. 1), as compared to the current (Ex. 2) summary. The May 2017 revision includes additional information regarding: a grace period, businesses with 9 or fewer employees, exposure to naturally occurring chemicals in food (particularly relevant here), and special compliance procedure for a private party action based on specified types of exposures.

This Court finds that the analysis and logic contained within the very recent rulings from the Alameda and Los Angeles Courts (ROA # 162) are directly on point, and are instructive. Failing to attach the more complete and current revision does not even amount to substantial compliance with this pre-suit notice requirement. Many businesses targeted by Prop 65 actions are small, family owned and do not have the benefit of retained or in house counsel. It is important that they are provided with immediate access to a complete summary of the applicable law.

This is a defect that renders the pre-suit notice dated September 1, 2020 defective and this Motion is granted to Defendant Pancho Villa for this reason.

B. Contact Information (� 25903(b)(2)(A)(1)) 'A notice shall provide adequate information from which to allow the recipient to assess the nature of the alleged violation .... 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 .... � ...(A) For all notices, the notice shall identify: ... � ...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 ....' Id. at (b)(2)(A)(1).

Again, the Court finds that the analysis and logic contained within the rulings from the Alameda and Los Angeles Courts (ROA # 162) are directly on point, and are instructive. Substituting counsel's contact information renders both pre-suit notices defective.

The intent behind the pre-suit notice is to enable businesses targeted by Prop 65 actions to economically and efficiently address concerns raised in the pre-suit notice by directly communicating with the private citizen enforcer. This becomes a cumbersome, expensive process if the targeted business is forced to communicate through counsel. In addition, this requirement ensures that the private enforcer is genuine, and not simply a 'straw person' used by a law firm seeking only to generate legal fees.

This is a defect that renders the pre-suit notices dated September 1, 2020 and September 21, 2021 defective. This Motion is granted to Defendants Pancho Villa's and Area 51 Mexprod for this reason.

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3115591