Judge Kerry Bensinger, Case Number: 24STCV20661, Date: 2024-11-27 Tentative Ruling

CASE: Keep America Safe and Beautiful, in the public interest v. The Himalaya Drug Company, et al.

RESPONDING PARTY: Plaintiff Keep America Safe and Beautiful, in the public interest

This is a Proposition 65 case. On August 15, 2024, plaintiff Keep America Safe and Beautiful (Plaintiff) filed a complaint against defendant Himalaya Wellness USA Limited (erroneously sued as The Himalaya Drug Company) (Himalaya) and Amazon.com Services, LLC (collectively, Defendants), alleging Defendants failed to comply with Proposition 65 with respect to Himalaya’s dietary fiber supplement product. Plaintiff seeks injunctive relief and civil penalties.

A demurrer for sufficiency tests whether the complaint states a cause of action.¿ (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)¿ When considering demurrers, courts read the allegations liberally and in context, accepting the alleged facts as true.¿ (Nolte v. Cedars-Sinai Medical Center (2015) 236 Cal.App.4th 1401, 1406.)¿ “Because a demurrer challenges defects on the face of the complaint, it can only refer to matters outside the pleading that are subject to judicial notice.”¿ (Arce ex rel. Arce v. Kaiser Found. Health Plan, Inc. (2010) 181 Cal.App.4th 471, 556.)¿¿

Himalaya’s requests for judicial notice are GRANTED. (Evid. Code, § 452, subds. (d)(1), (h).)

Himalaya argues Plaintiff’s action is time-barred. The statute of limitations for an action seeking civil penalties is one year. (Code Civ. Proc., § 340, subd. (a); Shamsian v. Atlantic Richfield Co. (2003) 107 Cal.App.4th 967, 978 (Shamsian).) The time begins to run upon the date of Plaintiff’s discovery of the alleged violation. (Shamsian, 107 Cal.App.4th at p. 978.)

In support, Himalaya points to Plaintiff’s Notice of Violation which states, in part, that the “violations have been occurring every day between since at least August 17, 2022, and every day since the products were introduced into the California marketplace[.]” (Ellis Decl., Ex. A, Request for Judicial Notice (RJN) 1.) Himalaya argues Plaintiff knew of the alleged violations as of August 17, 2022. This action was filed more than a year later.

Plaintiff contends the language of the Notice of Violation does not clearly indicate the violations were discovered on August 17, 2022. Plaintiff further argues that, for statute of limitations purposes, time is measured from the time of the last alleged violation. (Consumer Advocacy, Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953, 981 (Kintetsu).) Here, Plaintiff alleges the Proposition 65 violations are ongoing. (See Complaint, Prayer for Relief.)

The parties focus their energies over the language of Plaintiff’s Notice of Violation and the application of Shamisian and Kintetsu to this case. The court need not resolve these disputes. This is so because Plaintiff brings a Proposition 65 case seeking civil penalties and injunctive relief. (See Complaint, Prayer for Relief.) The statute of limitations for injunctive relief is three years. (Code Civ. Proc., § 338, subd. (a); see also Consumer Advocacy Group, Inc. v. Exxon Mobil Corp. (2002) 104 Cal.App.4th 438, 442, fn. 4 [in a Proposition 65 case, noting “[t]he statute of limitations applicable to claims for statutory penalties and injunctive relief are, respectively, one and three years.”].) Assuming, for the moment, Plaintiff discovered the violations on August 17, 2022, this action was filed within the three-year limitations period applicable to injunctive relief. At least with respect to that claim, this action is timely. Even if the civil penalties claim is untimely (which the court declines to address), Himalaya’s demurrer would not dispose of Plaintiff’s entire cause of action. “A demurrer must dispose of an entire cause of action to be sustained.” (Fremont Indem. Co. v. Fremont Gen. Corp. (2007) 148 Cal.App.4th 97, 119.)

Defendant Himalaya Wellness USA Limited is ordered to serve and file their answer to the complaint within 10 days of this order.

Kerry Bensinger

Judge of the Superior Court