Judge: Peter A. Hernandez, Case: 24STCV08765, Date: 2024-08-28 Tentative Ruling
Case Number: 24STCV08765 Hearing Date: August 28, 2024 Dept: 34
Consumer Protection Group, LLC v. 1616
Holdings, Inc., et al. (24STCV08765)
Defendants 1616 Holdings, Inc. and Five Below, Inc.’s Demurrer to the Complaint is OVERRULED. Defendants are ordered to file an Answer within 10 days.
Background
Plaintiff Consumer Protection Group, LLC (“Plaintiff”) alleges as follows:
In 1986, California voters approved an
initiative to address growing concerns about exposure to toxic chemicals and
declared their right “[t]o be informed about exposures to chemicals that cause
cancer, birth defects, or other reproductive harm." Ballot Pamp., Proposed
Law, Gen. Elec. (Nov. 4, 1986) at p. 3. The initiative, The Safe Drinking Water
and Toxic Enforcement Act of 1986, codified at Health and Safety Code sections
25249.5, et seq. (“Proposition 65”), helps to protect California’s
drinking water sources from contamination, to allow consumers to make informed
choices about the products they buy, and to enable persons to protect
themselves from toxic chemicals as they see fit.
On or about May 16, 2023, Plaintiff
gave notice of alleged violations of Proposition 65 concerning consumer product
exposures, subject to a private action against Defendants 1616 Holdings, Inc.
and Five Below, Inc. (collectively, the “Defendants”), and to the California
Attorney General, County District Attorneys, and City Attorneys for each County
containing a population of at least 750,000 people in whose jurisdiction the
violations allegedly occurred, concerning a Waste Bag Dispenser containing high
amounts of Di(2-ethylhexyl) phthalate (“DEHP”). Before sending the notices of the alleged
violation, Plaintiff investigated the consumer products involved, the
likelihood that such products would cause users to suffer significant exposures
to DEHP, and the corporate structure of Defendants.
Plaintiff’s notices of alleged
violation included a Certificate of Merit executed by the attorney for the Plaintiff.
The Certificate of Merit stated that the attorney for Plaintiff who executed
the certificate had consulted with at least one person with relevant and
appropriate expertise who reviewed data regarding the exposures to DEHP, the
subject Proposition 65-listed chemicals of this action. Based on that
information, the attorney for Plaintiff who executed the Certificate of Merit
believed there was a reasonable and meritorious case for this private action. Plaintiff’s
counsel attached the Certificate of Merit, which contains confidential factual
information sufficient to establish the basis of the Certificate of Merit, to
the Attorney General.
Plaintiff's notice of alleged violation
also included a Certificate of Service and a document titled "The Safe
Drinking Water & Toxic Enforcement Act of 1986 (Proposition 65) A
Summary." Health & Safety Code § 25249.7(d). Plaintiff commenced this action more than sixty (60)
days from the dates that Plaintiff gave notices of the alleged violation to the
Defendants and the public prosecutors.
Neither the Attorney General nor any
applicable district attorney or city attorney has commenced or is diligently
prosecuting an action against the Defendants.
Therefore, Plaintiff sits in their
stead.
On April 4, 2024, Plaintiff filed a Complaint, asserting a Violation of Proposition 65 (Health and Safety Code section 25249.5 et seq.) against Defendants and Does 1-50.
A Case Management Conference is set for August 28, 2024.
A demurrer may be made on the grounds that the pleading, inter alia, does not state facts sufficient to constitute a cause of action and/or is uncertain. (Code Civ. Proc., § 430.10, subds. (e) and (f).)
When considering demurrers, courts read the allegations liberally and in context. In a demurrer proceeding, the defects must be apparent on the face of the pleading or via proper judicial notice. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) “A demurrer tests the pleadings alone and not the evidence or other extrinsic matters. Therefore, it lies only where the defects appear on the face of the pleading or are judicially noticed.” (SKF Farms v. Superior Court (1984) 153 Cal.App.3d 902, 905 [citations omitted].) “[A] demurrer does not, however, admit contentions, deductions or conclusions of fact or law alleged in the pleading, or the construction placed on an instrument pleaded therein, or facts impossible in law, or allegations contrary to facts of which a court may take judicial knowledge.” (S. Shore Land Co. v. Petersen (1964) 226 Cal.App.2d 725, 732 [citations omitted].)
Request for Judicial Notice
The court rules on Defendants’ Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibits A-B, D-F; Denied as to Exhibits G-J. There was no Exhibit C identified.
The court rules on Plaintiff’s Request for Judicial Notice (“RJN”) as follows: Granted as to Exhibits 1-2; Denied as to Exhibits 3-15.
1.
The pre-suit notice of violation served by Plaintiff,
which is a mandatory prerequisite to the commencement of a citizen enforcement
action arising under Proposition 65, is invalid as it fails to comply with the
plain text of Proposition 65’s regulations. (See Cal. Code of Regs., tit. 27, §
25903(b)(2)(A)(1).)
2.
The pre-suit notice also fails to attach the state’s
Proposition 65 “Appendix A” summary document which must be attached to each
pre-suit notice for the notice of violation to be valid. (See Cal. Code of
Regs., tit. 11, § 3101(a).)
3.
The pre-suit notice also fails to attach the state’s
Proposition 65 “Appendix A” summary document which must be attached to each
pre-suit notice for the notice of violation to be valid. (See Cal. Code of
Regs., tit. 11, § 3101(a).)
Identifying Information
The pre-suit notice of violation served by Plaintiff, which is a mandatory prerequisite to the commencement of a citizen enforcement action arising under Proposition 65, is invalid as it fails to comply with the plain text of Proposition 65’s regulations. (See Cal. Code of Regs., tit. 27, § 25903(b)(2)(A)(1).) The section requires a notice “in compliance with all requirements of this section.” Section 25903(b) further requires “adequate information . . . to allow the recipient to assess the nature of the alleged violation, as set forth in this paragraph.” [emphasis added]. Subpart (A)(1) requires the “name, address, and telephone number of the noticing individual . . .” Here, Defendants contend the notice is invalid because the Notice of Violation does not identify a responsible individual within the complaining entity nor does it provide an address and telephone number for the noticing entity. (See Demurrer, at p. 11.)
Here, the notice listed the agent (Blackstone Law) of the “noticing party” (Consumer Protection Group, LLC) The notice included the agent law firm’s contact information. This is sufficient information to allow an investigation. The lack of the noticing party’s contact information did not impede an investigation or resolution. There was sufficient contact information provided for communication, investigation, and possible resolution. Generally, “[u]nless the intent of a statute can only be served by demanding strict compliance with its terms, substantial compliance is the governing test.” (In re K.H. (2022) 84 Cal.App.5th 566, 603.) “[S]trict compliance with a statute is warranted when … (1) “the Legislature has provided a detailed and specific mandate” …, or (2) “the intent of [the] statute can only be served by demanding strict compliance with its terms.” (Prang v. Los Angeles County Assessment Appeals Board No. 2 (2020) 54 Cal.App.5th 1, 19-20.) With respect to the intent of the statute, “even when a statute uses ‘mandatory’ terms, substantial compliance with statutory directives will suffice if the purpose of the statute is satisfied.” (Manderson-Saleh v. Regents of Univ. of Cal. (2021) 60 Cal.App.5th 674, 703; see also Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1332-1333 [“Where there is compliance as to all matters of substance[,] technical deviations are not to be given the stature of noncompliance. [Citation.] Substance prevails over form.”].)
Appendix A
Defendants also contend the notice is invalid because Proposition 65’s Appendix A was not attached to the Notice of Violation. Here, this issue is a factual one as Defendants assert the Notice of Violation they received in the U.S. mail did not contain Appendix A. However, Plaintiff contends otherwise and notes that it was mailed to Defendants but not included in the submission to the Attorney General. Here, it appears that this factual contention has been properly pled. (Complaint, ¶ 20; SKF Farms v. Superior Court (1984) 153 Cal.App.3d at 905 [demurrer does not test the evidence; only the pleadings].)
The demurrer on both grounds is OVERRULED.