Judge: Joseph Lipner, Case: 24STCV26627, Date: 2025-02-13 Tentative Ruling

Case Number: 24STCV26627    Hearing Date: February 13, 2025    Dept: 72

SUPERIOR COURT OF CALIFORNIA

COUNTY OF LOS ANGELES

DEPARTMENT 72

TENTATIVE RULING

Defendants U.B.C. Distributors and U.B.C. Distributors CA, Inc. (collectively, “Moving Defendants”) demur to the Complaint filed by Plaintiff Consumer Advocacy Group, Inc.

The Court tentatively OVERRULES the demurrer.  However, the Court considers that it is a close question whether plaintiff Consumer Advocacy Group (“Plaintiff”) could identify its outside counsel as a person “within” the noticing entity.  The Court solicits argument on the issue.

Background

This action relates to Proposition 65 warnings.

Plaintiff alleges that Defendants manufacture or distribute canned sardines without proper labeling warning consumers of potential exposure to cadmium.

Plaintiff filed this action on October 11, 2024, raising one claim for violation of Proposition 65, The Safe Drinking Water and Toxic Enforcement Act of 1986 (Health and Safety Code, sections 25249.5, et seq.).

On January 15, 2025, Moving Defendants demurred to the Complaint. Plaintiff filed an opposition and Moving Defendants filed a reply.

Requests for Judicial Notice

The Court grants the parties’ requests for judicial notice and takes notice of the submitted public records.

Discussion

Presuit Notice of Violation

            Moving Defendants contend that Plaintiff issued a defective pre-suit notice of violation, mandating dismissal.

            “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, subd. (a).)

            A notice of violation must include:

“(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.”

(Cal. Code Regs. tit. 27, § 25903, subd. (b).)

            The required information in the description of violation includes “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, subd. (b)(2)(A)(1).)

            “Failure to comply with presuit notice requirements is grounds for dismissal, and deficiencies cannot be cured after the complaint is filed.” (Council for Education & Research on Toxics v. Starbucks Corp. (2022) 84 Cal.App.5th 879, 900.)

            Plaintiff’s notice indicates that the alleged violators may contact “its designated person, its attorney, Reuben Yeroushalmi”, and provides his contact information. Yeroushalmi is Plaintiff’s outside counsel at Yeroushalmi & Yeroushalmi. Moving Defendants contend that Plaintiff’s notice is not compliant because the notice must indicate “noticing individual or a responsible individual within the noticing entity” (Cal. Code Regs. tit. 27, § 25903, subd. (b)(2)(A)(1) [emphasis added], and Yeroushalmi is not a constituent of Plaintiff, but rather is outside counsel.

            Plaintiff argues that an outside counsel can comply with the requirement of being “a responsible individual within the noticing entity.”  The question is a close one, but on balance the Court tentatively agrees with Plaintiff’s argument.

            “While the words of a statute provide the most reliable indication of the Legislature's intent, we do not construe those words in isolation. Instead, we harmonize the enactment's various parts by considering the provision at issue in the context of the whole statutory scheme.” (Hoffmann v. Young (2022) 13 Cal.5th 1257, 1266.) “The court's primary duty in interpreting a statute is to determine and effectuate legislative intent.” (Jabo v. YMCA of San Diego County (2018) 27 Cal.App.5th 853, 870.) “This entails giving statutory language a commonsense meaning and construing it in the context of other provisions relating to the same subject matter, to harmonize them if possible.” (Id. at pp. 870-871.)

            “The relationship of attorney and client is one of agent and principal.” (Shafer v. Berger, Kahn, Shafton, Moss, Figler, Simon & Gladstone (2003) 107 Cal.App.4th 54, 69.) “Generally speaking, a person may do by agent any act which he might do himself.” (Preis v. American Indemnity Co. (1990) 220 Cal.App.3d 752, 761.)

            Defendants provide no authority indicating that OEHHA intended that a noticing party forego the right to communicate through its attorney concerning the notice where the attorney is outside counsel. The litigation system, particularly as it relates to corporate entities, rests on the ability of parties to communicate through their attorneys. And Section 25903, which lays out mandatory pre-litigation procedures, falls squarely in this context. Preventing a noticing party from communicating through their attorney would impede the regulation’s purpose of “allow[ing] the recipient to assess the nature of the violation” by slowing down communication between the parties. A noticing party anticipating litigation would presumably still route communication through its attorney; Moving Defendants’ interpretation would simply add extra steps.

            The Court concludes that, as an agent of Plaintiff in handling the notice of violation, Reuben Yeroushalmi was a “person within the noticing entity” within the meaning of Section 26903. Plaintiff has therefore complied with the notice requirements.

14-Day Notice of Special Compliance Procedure

Moving Defendants contend that Plaintiff’s lawsuit must also be dismissed because Plaintiff failed to comply with the 14-day notice of special compliance procedure laid out in Health and Safety Code, section 25249.5, subd. (k). Moving Defendants appear to be referring to Section 25249.7, subd. (k); section 25249.5 does not have a subdivision (k)).

Health and Safety Code, section 25249.7, subd. (k) requires that the notice of violation, under certain circumstances, be served with a notice of special compliance procedure and proof of compliance form so that the violation may be cured. (Health & Saf. Code, § 25249.7, subd. (k).)

Subdivision (k)’s special compliance provision only applies where the violation relates to one of the following:

“(A) An exposure to alcoholic beverages that are consumed on the alleged violator’s premises to the extent onsite consumption is permitted by law.

(B) An exposure to a chemical known to the state to cause cancer or reproductive toxicity in a food or beverage prepared and sold on the alleged violator’s premises primarily intended for immediate consumption on or off premises, to the extent of both of the following:

(i) The chemical was not intentionally added.

(ii) The chemical was formed by cooking or similar preparation of food or beverage components necessary to render the food or beverage palatable or to avoid microbiological contamination.

(C) An exposure to environmental tobacco smoke caused by entry of persons (other than employees) on premises owned or operated by the alleged violator where smoking is permitted at any location on the premises.

(D) An exposure to chemicals known to the state to cause cancer or reproductive toxicity in engine exhaust, to the extent the exposure occurs inside a facility owned or operated by the alleged violator and primarily intended for parking noncommercial vehicles.”

(Health & Saf. Code, § 25249.7, subd. (k)(1) [emphasis added].)

            Here, the product allegedly giving rise to the violation is canned sardines, some with “best by” dates over a month after the filing of the Complaint. (Complaint ¶ 27.) Such a product was not primarily intended for immediate consumption, nor is it an alcoholic beverage, tobacco smoke, or vehicle exhaust. Thus, 25249.7, subd. (k) does not apply.

            The Court therefore overrules the demurrer.