Judge: Jon R. Takasugi, Case: 24STCV24842, Date: 2025-01-29 Tentative Ruling

Case Number: 24STCV24842    Hearing Date: January 29, 2025    Dept: 17

Superior Court of California

County of Los Angeles

DEPARTMENT 17

TENTATIVE RULING

Defendant’s demurrer is OVERRULED.

            On 12/20/2024, Plaintiff Mothers Oversight Network for Actionable Contaminant Harm, LLC (Monarch or Plaintiff) filed suit against Hobby Lobby, alleging a violation of Health & Safety Code section 25249.6.

            On 12/20/2024, Defendant demurred to Plaintiff’s Complaint.

Discussion 

            Defendant argues that Plaintiff’s Complaint failed to state facts sufficient to state a claim because Plaintiff’s mandatory pre-suit notice of violation failed to comply with the requirements of Health and Safety Code section 25249.7(d) and California Code of Regulations, title 27, section 25903.

Proposition 65 requires that “[w]here the alleged violator has a current registration with the California Secretary of State that identifies a Chief Executive Officer, President, or General Counsel of the corporation, the notice shall be addressed to one of those persons.” (Cal. Code Regs., title 27, § 25903(c)(4).)

Plaintiff bases the instant private enforcement action upon a pre-suit notice of violation, dated February 29, 2024. The Notice was served upon the CEO, but is not addressed to a Chief Executive Officer, President, or General Counsel of the corporation by name.

Section 25903, Proposition 65’s implementing regulation, requires that pre-suit notices fulfill all requirements of the regulation to be effective – stating this requirement not once, but twice:

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.

(Health & Saf. Code, § 25249.7, subd. (d); Cal. Code Regs., tit. 27, § 25903; see e.g., In re Vaccine Cases (2005) 134 Cal.App.4th 438, 458 [“Failure to comply with any of these mandatory prerequisites of the Act does bar plaintiffs’ action”].)

As noted by Defendant, the language of Section 25903 is substantially similar to the subject regulation in Sutter Ventures in which defendant tenants demurred to plaintiff landlord’s unlawful detainer action. (2710 Sutter Ventures, LLC v. Millis (2022) 82 Cal.App.5th 842, 851.) In that case, the court held that a local rent ordinance (Section 37.9) required the landlord to provide tenants with notice of rights, including statutory language regarding the right to receive a relocation fee, and the landlord’s notice was deficient because it cited an outdated version of the required notice that did not reference the fee. (Id.) Notably, despite citing outdated language, the landlord in that case did attach an up-to-date version of the required language to the notice. (Id.) The Court of Appeal affirmed the ruling sustaining the demurrer, finding:

On its face, then, [Section 37.9] requires complete compliance with section 37.9A(e)(4). Section 37.9A(e)(4) also states that “[a]ny notice to quit pursuant to Section 37.9(a)(13) shall notify the tenant or tenants concerned of the right to receive payment under [Section 37.9]. Use of the word ‘shall,’ coupled with the plain language of section 37.9, subdivision (a)(13), evinces the San Francisco Board of Supervisor’s intent that the notice requirement under section 37.9A(e)(4) be complied with precisely.

            (Id. at 858-859.)

Similarly, Proposition 65 regulations explicitly require that a private enforcer “shall” comply with “all requirements” of this section. And, unlike the regulation in Sutter Ventures, Section 25903 is even more explicit regarding its intent – it states that no private enforcer can proceed unless they have issued a pre-suit notice “in compliance with all requirements of this section.”

Based on this legal authority, the Court agrees that strict compliance is required. As applied to the facts here, the question is whether or not the Code requires that the CEO, President, or General Counsel be addressed specifically by name. If so, Plaintiff’s Notice is defective.

As cited above, California Code of Regulations title 27 §25903(4) requires:

(4) Where the alleged violator has a current registration with the California Secretary of State that identifies a Chief Executive Officer, President, or General Counsel of the corporation, the notice shall be addressed to one of those persons.

            As such, there is nothing in the regulation language that requires that the service be on the person by name, rather than by title. That title, rather than name, is sufficient, is evidenced by the fact that other provisions of the applicable code of regulations do require identification of someone by name.

            For example, Cal. Code Regs. tit. 27 § 25903(b) requires:

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.

            In other words, the Court agrees with Plaintiff’s argument that “[c]ertainly, if the authors wished to require the notice to name the Chief Executive Officer, President, or General Counsel of the corporation, they showed their ability to require that in the earlier section. That they chose not to indicates that addressing the notice to the Chief Executive Officer, President, or General Counsel of the Corporation is sufficient. Which is precisely what was done here.” (Opp., 2: 21-25.) Plaintiff’s Notice addressed the CEO by title, and therefore is sufficient.

Based on the foregoing, Defendant’s demurrer is overruled.

It is so ordered.

Dated:  January    , 2025

   Hon. Jon R. Takasugi
   Judge of the Superior Court

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