Judge: Jon R. Takasugi, Case: 19STCV25041, Date: 2024-03-01 Tentative Ruling

Case Number: 19STCV25041    Hearing Date: March 1, 2024    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s motion for judgment on the pleadings is GRANTED.

            On July 18, 2019, Plaintiff filed the instant action against the Kroger Co., the Kroger Co. of Michigan, and Foods Co. (collectively, Defendants), alleging a violation of Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986.

            On 2/5/2024, Defendant moved for a judgment on the pleadings.

            On 2/16/2024, Plaintiff opposed.

Discussion

            Defendant argues that it is entitled to a judgment on the pleadings because Plaintiff’s Notice of Violation is defective, and Prop 65 requires strict compliance with pre-suit notice requirements. 

            In support of the first contention (i.e, the Notice is defective), Defendant argues that Plaintiff’s Notice does not identify a responsive individual “within” the noticing entity.

Pre-suit notice was designed to accomplish two things: (1) to provide the public prosecutor the means to assess whether to intervene on the public’s behalf, and (2) to afford the target of the notice the opportunity to avoid litigation by settling with the plaintiff or by curing any violation. (Consumer Advoc. Grp., Inc. v. Kintetsu Enters. Am. (2007) 150 Cal. App. 4^th 953, 963–64.) Against that backdrop, Proposition 65 requires that the notice identify “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)(1) (emphasis added). CAG fails to satisfy this requirement.

            Here, Plaintiff’s Notice states that “[v]iolators may contact CAG concerning this Notice through its designated person within the entity, its attorney, Reuben Yeroushalmi.” (See e.g., D’s Ex. G, at 1.) Defendant contends this is insufficient because Plaintiff’s outside counsel is not a “responsible individual within” CAG.

            In support of the second contention (i.e., Prop. 65 requires strict compliance), Defendant cites Prop. 65’s express language which provides:

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 provision 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.

            In opposition, Plaintiff argues that its Notices were properly served, and even assuming they were not, only substantial, rather than strict, compliance is required.

            In support of the first contention, Plaintiff notes that there is nothing in the statute that actually limits the phrase of “individual within the noticing entity” in 27 CCR § 25903(b)(2)(A)(1) to mean “officer, director, or employee. Indeed, as noted by Plaintiff, OEHHA created a defined term, “employee” at the outset of the Chapter that would seem to capture what Defendant contends the phrase “person within the entity.” (27 CCR, § 25102(h).) As such, Plaintiff contends that if OEHHA had intended to apply the notice requirement to only officer, director, or, employee, OEHHA could have used the language of “employee” rather than “person within the entity.” By using this broader language, Plaintiff contends that non-employee agents qualified as appropriate contact persons.  

            In support of the second contention, Plaintiff characterizes the ruling of Kintetsu, supra, as having concluded that only substantial compliance with the requirements of section 25903(B)(2)(a) was necessary.

            After review, the Court disagrees with Plaintiff.

            As for the issue of Notice, Plaintiff does not cite any statutory language or case law which would suggest that outside counsel would constitute an individual “within” the noticing entity. Thus, while the Court understands Plaintiff’s contention that there is no indication that this category of individuals must be limited to a director, officer, or employee, Plaintiff has not provided any basis for why outside counsel would fall within this category. Given that the language “individual within the noticing entity” would, on its face, appear to exclude outside counsel, Plaintiff offers no explanation as to why OEHHA would have used this language without any further definition if it contemplated that outside counsel should be included in this definition.

            As for the issue of compliance, the Court is not persuaded of Plaintiff’s interpretation of Kintetsu. In Kintetsu, one defendant, Circle K Stores, Inc., “argue[d] that the notice was insufficient because it [Circle K Stores, Inc.] was incorrectly named” having been listed as “Circle K Co.” and “Circle K” in the notice and the complaint. (Kintetsu, supra, 150 Cal.App.4th at 972.) The Court of Appeal rejected Circle K Stores, Inc.’s challenge to the validity of the notice on the grounds that it failed to strictly comply with Section 25903(B)(2)(a)’s requirement that the notice “shall identify … the name of the alleged violator”, ruling that “[b]y seeking a dismissal on grounds other than personal jurisdiction, Circle K Stores, Inc. forfeited its right to contest the notice on the ground that it was improperly named.” (Ibid.)

The Court understand Plaintiff’s argument that if failure to strictly comply was required then failure to strictly comply with the requirement of Section 25903(B)(2)(a) to identify “the name of the alleged violator” would have been grounds for dismissal in its own right, independent of any challenge to personal jurisdiction. However, this is an inference of Plaintiff’s, and is not expressly stated by the Kintetsu Court, nor is it a question that was actually considered by the Court. Rather, the Kintetsu Court did not consider the questions of whether or not the failure to properly name Circle K was fatal to the claim, or whether or not there was still substantial compliance, because it found that Circle K had forfeited the right to raise the issue. As such, it is a overstatement of the holding to say that the Kintestu Court concluded that only substantial compliance was necessary with Prop. 65 requirements.

Moreover, Plaintiff is assuming a false equivalency between the facts here and in Kintetsu. In Kintetsu, Plaintiff failed to include Circle K’s full name—Circle K Stores, Inc.—in the Notice, and instead Noticed them as “Circle K Co./Circle K”. Here, by contrast, the question is whether or not the individual named in Plaintiff’s Notice satisfies the very definition of an individual within the noticing entity as a required by statute. The Court disagrees that these defects are analogous. As such, the Court is not persuaded that Plaintiff has shown that it substantially complied with Section 25903(B)(2)(a) requirements. 

            Proposition 65 expressly states that pre-suit notices much meet “all requirements of [the] section, and that “[n]o person shall commence an action to enforce the provision 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) (emphases added). Proposition 65 requires that the notice identify “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)(1)

            Here, Plaintiff listed outside counsel as the responsible individual within the noticing entity, and could not identify any legal basis on which this Court could rely on to conclude that outside counsel fell within the meaning of the statute. Second, while the Court questions Plaintiff’s contention that only substantial compliance with pre-suit notice requirements is necessary, the Court also concludes that, even assuming it is, Plaintiff has not shown that its listing of outside counsel still substantially complied with the statute.

            Based on the foregoing, Defendant’s motion for judgment on the pleadings is granted.

It is so ordered.

Dated:  March    , 2024

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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