Judge: Maurice A. Leiter, Case: 24STCV21766, Date: 2025-03-06 Tentative Ruling

Case Number: 24STCV21766    Hearing Date: March 6, 2025    Dept: 54

Hearing Date: March 6, 2025

Department 54, Judge Maurice Leiter

Demurrer to Complaint and Motion to Strike

Moving Party: Defendants The Kroger Co., Ralphs Grocery Company, Hughes Markets and Maplebear, Inc.

Responding Party: Plaintiff The Chemical Toxin Working Group, Inc.

T/R:     DEFENDANTS’ DEMURRER IS OVERRULED.

THE MOTION TO STRIKE IS DENIED.

DEFENDANTS TO FILE AND SERVE ANSWERS TO THE COMPLAINT WITHIN 30 DAYS OF NOTICE OF RULING.

DEFENDANTS TO NOTICE

If the parties wish to submit on the tentative, please email the courtroom at SMCdept54@lacourt.org with notice to opposing counsel (or self-represented party) before 8:00 am on the day of the hearing.

The Court considers the moving papers, opposition, and reply.

BACKGROUND

On August 26, 2024, Plaintiff The Chemical Toxin Working Group, Inc. dba Healthy Living Foundation filed a complaint against Defendants The Kroger Co., Ralphs Grocery Company, Hughes Markets, Maplebear, Inc., and Instacart, Inc., asserting causes of action for violation of Health & Safety Code § 25249.6. Plaintiff alleges Defendants failed to provide clear and adequate warnings of possible lead exposure on certain products under Proposition 65.

REQUEST FOR JUDICIAL NOTICE

The parties’ requests for judicial notice are GRANTED as to the existence of the documents but not as to the truth of the matters in them.

ANALYSIS

A demurrer to a complaint may be taken to the whole complaint or to any of the causes of action in it.  (CCP § 430.50(a).)  A demurrer challenges only the legal sufficiency of the complaint, not the truth of its factual allegations or the plaintiff's ability to prove those allegations.  (Picton v. Anderson Union High Sch. Dist. (1996) 50 Cal. App. 4th 726, 732.)  The court must treat as true the complaint's material factual allegations, but not contentions, deductions or conclusions of fact or law.  (Id. at 732-33.)  The complaint is to be construed liberally to determine whether a cause of action has been stated.  (Id. at 733.)

A. Pre-Suit Notice

Defendants demur to the entire complaint on the ground that Plaintiff failed to comply with the pre-suit notice necessary to initiate this action. The notice must state:

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;

2) the name of the alleged violator or violators;

3) the approximate time period during which the violation is alleged to have occurred; and 4) the name of each listed chemical involved in the alleged violation.

(Cal. Code Regs. tit. 27, § 25903(b)(2)(A).)

Defendants assert that Plaintiff failed to provide the contact information for an individual at the noticing entity. The notice provided by Defendants states that Plaintiff’s Chief Officer David Steinman is the responsible individual within the noticing entity. The notice provides the contact information of Plaintiff’s attorneys. Defendants assert this is insufficient because it does not strictly comply with the notice requirements. Defendants cite no authority stating the contact information for the noticing individual cannot be the noticing entity’s counsel.

Defendants also argue that Plaintiff is “collaterally estopped” from arguing that the notice is sufficient because other trial courts in actions involving Plaintiff have held that providing the attorney contact info does not comply with the strict requirements of the statute. In opposition, Plaintiff presents several trial court decisions stating strict compliance is not necessary and represents that one of the cases cited by Defendants in pending appeal. The demurrer cannot be sustained on this basis.

B. Statute of Limitations

Defendants argue that the action is time-barred by the one-year statute of limitations for an action “upon a statute for a penalty or forfeiture” as the phrase is used in Code of Civil Procedure section 340(a) because the notice states that the Prop 65 violation was discovered in 2021. The Court disagrees. The notice also states that the violation continues to this day. If the violation continues to the present, the claims are not time-barred.

C. Abatement

Defendants request that the Court stay this action pending the appeal of another trial court decision between the parties on the issue of notice, as discussed above. The Court declines to do so. Abating this action while waiting on the appeal in another action could delay justice and prejudice Plaintiff.

D. Motion to Strike

Defendants move to strike the claims for civil penalties on the ground that Plaintiff’s claims are barred by the statute of limitations. As discussed, this argument fails.

The motion to strike is DENIED.