Judge: Maurice A. Leiter, Case: BC634011, Date: 2023-01-31 Tentative Ruling

Case Number: BC634011    Hearing Date: January 31, 2023    Dept: 54

Hearing Date: January 31, 2023

Department 54, Judge Maurice A. Leiter

(3) Demurrers to the Third Amended Complaint

Moving Party: Defendants Walong Marketing, Inc. and Tawa Supermarket, Inc.

Responding Party: Plaintiff Consumer Advocacy Group, Inc.

T/R:     DEFENDANTS’ DEMURRERS ARE OVERRULED.

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 October 21, 2022, Plaintiff filed the operative third amended complaint against Defendants for violations of Prop. 65.

REQUESTS FOR JUDICIAL NOTICE

            Defendants’ requests for judicial notice are GRANTED as to the existence of the documents but not as to the truth of the matters asserted 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. Defendant Walong Marketing, Inc.’s Demurrer to the Third Amended Complaint

            Walong demurs to the TAC on the ground that Plaintiff failed to serve a legally compliant pre-suit notices of violation per Health & Safety Code § 25249.7(d).

Walong asserts the notices contain these deficiencies: (1) failure to address and serve the appropriate Walong corporate officer by name as identified in Walong’s publicly available Statement of Information on file with the California Secretary of State’s office (§ 25903(c)(4); “Defect 1”); (2) failure to provide a phone number for Plaintiff rather than Plaintiff’s counsel (§ 25903(b)(2)(A)(1); “Defect 2”); (3) failure to provide a contact person for Plaintiff rather than Plaintiff’s counsel (§ 25903(b)(2)(A)(1); “Defect 3”); and (4) failure to attach a correct copy of the regulatory “Appendix A” to the pre-suit notice providing a summary of Proposition 65 to assist the alleged violator in understanding the pre-suit notice (§ 25903(b)(1); “Defect 4”).

Prop. 65 requires:

(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.

(A) 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;

(Cal. Code Regs. tit. 27 § 25903(b).)

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.

(Id. § 25903(c)(4).)

1. Defect 1

            Walong asserts that Plaintiff was required to address and serve the notices on Walongs’ appropriate corporate officer. Section 25903(c)(4) does not require service on a corporate officer. The notices are addressed to Walong’s CEO. (RJN ¶ B.) The demurrer cannot be sustained on this basis.

2. Defects 2 and 3

            Walong contends that Plaintiff cannot identify counsel as the contact for Plaintiff on the notice. No such prohibition exists in the statutory scheme. (Cal. Code Regs. tit. 27 § 25903(b).) The demurrer cannot be sustained on this basis.

3. Defect 4

            Walong argues that Plaintiff did not provide a correct copy of the summary of Prop. 65. Walong provides redlined versions showing the differences between the “correct” summary and the summaries provided to Walong. (Decl. Stevenson, Exhs. A-C.) None of the identified differences are material. The demurrer cannot be sustained on this basis.

            Defendant Walong’s demurrer is OVERRULED.

B. Defendant Tawa Supermarket, Inc.’s Demurrer to Causes of Action Nos. 1-3, 7-10, 12-14, 16-18, and 20-22

            Tawa demurs to causes of action nos. 1-3, 7-10, 12-14, 16-18, and 20-22 on the same grounds as Walong’s demurrer above. As discussed, these arguments fail.

            Tawa’s demurrer to causes of action nos. 1-3, 7-10, 12-14, 16-18, and 20-22 is OVERRULED.

C. Defendant Tawa Supermarket, Inc.’s Demurrer to Causes of Action Nos. 17-22

            Tawa demurs to causes of action nos. 17-22 on the ground that Plaintiff’s pre-suit notices fail to identify how, as a retailer, Tawa violated Prop. 65. Tawa cites Cal. Code Regs. tit. 27 § 25600.2(e), which provides,

(e) The retail seller is responsible for providing the warning required by Section 25249.6 of the Act for a consumer product exposure only when one or more of the following circumstances exist:

(1) The retail seller is selling the product under a brand or trademark that is owned or licensed by the retail seller or an affiliated entity;

(2) The retail seller has knowingly introduced a listed chemical into the product, or knowingly caused a listed chemical to be created in the product;

(3) The retail seller has covered, obscured or altered a warning label that has been affixed to the product pursuant to subsection (b);

(4) The retail seller has received a notice and warning materials for the exposure pursuant to subsections (b) and (c) and the retail seller has sold the product without conspicuously posting or displaying the warning; or

(5) The retail seller has actual knowledge of the potential consumer product exposure requiring the warning, and there is no manufacturer, producer, packager, importer, supplier, or distributor of the product who:

(A) Is a “person in the course of doing business” under Section 25249.11(b) of the Act, and

(B) Has designated an agent for service of process in California, or has a place of business in California.

Tawa asserts that the notice only refers to Tawa as a “violator” and does not specify the circumstances under which Tawa is a violator per section 25600.2(e). Tawa provides no authority stating Plaintiff must include this information in the notice. The demurrer cannot be sustained on this basis.

Tawa’s demurrer to causes of action nos. 17-22 are OVERRULED.

Hearing Date: January 31, 2023

Department 54, Judge Maurice A. Leiter

Motion to Bifurcate

Moving Party: Defendants Walong Marketing, Inc. and Tawa Supermarket, Inc.

Responding Party: Plaintiff Consumer Advocacy Group, Inc.

T/R:     DEFENDANTS’ MOTION TO BIFURCATE IS DENIED.

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 October 21, 2022, Plaintiff filed the operative third amended complaint against Defendants for violations of Prop. 65.

ANALYSIS

“Code of Civil Procedure section 598 allows a party to seek an order before trial ‘that the trial of any issue or any part thereof shall precede the trial of any other issue or any part thereof in the case,’ where ‘the convenience of witnesses, the ends of justice, or the economy and efficiency of handling the litigation would be promoted thereby ….’” (Estate of Young (2008) 160 Cal. App. 4th 62, 90.)

            Defendants move to bifurcate the trial to determine the following issues first:

(1) whether Defendants had knowledge of Proposition 65 listed chemicals in the products subject to Plaintiff’s TAC prior to learning of Plaintiff’s pre-suit 60-Day Notices and provided compliant Proposition 65 warnings promptly thereafter; (2) whether Plaintiff’s pre-suit 60-Day Notices complied with legal requirements necessary to confer authority on Plaintiff to bring these claims in the public interest; and (3) whether Plaintiff can establish facts sufficient to hold Tawa liable as a retailer under Proposition 65 where there is a responsible supplier of the products at issue.

            Defendants assert that bifurcation will save time and resources because if Defendants prevail on any of these issues, the trial will not need to proceed to the substantive causes of action. Defendants contend the substantive causes of action require extensive time and expert witnesses. In opposition, Plaintiff asserts that bifurcation will require duplicative work because the phases contain overlapping issues and evidence.

            The Court, in its discretion, denies bifurcation. Defendants are not entitled to have their affirmative defenses tried first, and the overlapping evidence and issues risk drawing the trial out for longer than necessary.

            Defendants’ motion is DENIED.