Judge: Peter A. Hernandez, Case: 24STCV23164, Date: 2025-01-29 Tentative Ruling
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Case Number: 24STCV23164 Hearing Date: January 29, 2025 Dept: 34
1.
Defendant Paparazzi LLC’s Demurrer to Plaintiff’s Complaint is OVERRULED.
2.
Defendant Paparazzi LLC’s Motion to Strike Portions of Plaintiff’s Complaint
is DENIED.
I.
Background
On September 9, 2024, Plaintiff Monarch LLC (“Plaintiff”)
filed a complaint against Defendant Paparazzi LLC (“Defendant”) arising from an
alleged Proposition 65 violation alleging causes of action for civil penalties
and injunctive relief.
On December 2, 2024, the court found case numbers
24STCV29988 and 24STCV23164 related.
On December 9, 2024, Defendant filed this Demurrer and
Motion to Strike. On January 15, 2025, Plaintiff filed an opposition.
II.
Demurrer
A.
Legal Standard
“The
party against whom a complaint or cross-complaint has been filed may object, by
demurrer or answer as provided in Section 430.30, to the pleading on any one or
more of” various grounds listed in statute. (Code Civ. Proc., § 430.10.)
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 pleading alone, and not the evidence or facts alleged.” (E-Fab,
Inc. v. Accountants, Inc. Servs. (2007) 153 Cal.App.4th 1308, 1315.)
As such, the court assumes the truth of the complaint’s properly pleaded or
implied factual allegations. (Ibid.) The only issue a demurrer is
concerned with is whether the complaint, as it stands, states a cause of
action. (Hahn v. Mirda (2007) 147 Cal.App.4th 740, 747.)
Where
a demurrer is sustained, leave to amend must be allowed where there is a
reasonable possibility of successful amendment. (Goodman v. Kennedy
(1976) 18 Cal.3d 335, 348.) The burden is on the plaintiff to show the court
that a pleading can be amended successfully. (Id.; Lewis v. YouTube, LLC
(2015) 244 Cal.App.4th 118, 226.) However, “[i]f there is any reasonable
possibility that the plaintiff can state a good cause of action, it is error to
sustain a demurrer without leave to amend.” (Youngman v. Nevada Irrigation
Dist. (1969) 70 Cal.2d 240, 245).
B.
Discussion
1.
Request for Judicial Notice
2.
Statute of Limitations
Defendant demurs to Plaintiff’s complaint
on the grounds that Plaintiff’s claims under the Safe Drinking Water and Toxic
Enforcement Act of 1986 (“Proposition 65”) are time-barred by the statute of
limitations. (Demurrer, at p. 14.)
Enforcement claims under Proposition 65
generally have a one-year statute of limitations. (Health & Safety Code §
25249.7(d).) Defendant grounds their assertion on two Proposition 65 pre-suit notices
given by Plaintiff on March 30, 2022, and February 7, 2024. (Demurrer, at p.
14.) Defendant argues, based on the prior notices, that Plaintiff was aware of
the alleged violation as early as February 23, 2022 when Plaintiff acquired Defendant’s
product named “Treasury Fund White Ring” that allegedly exposes consumers to
cadmium and were sold without a warning which is greater than one year before
the September 9, 2024 complaint. (Ibid.)
Plaintiff, in response, argues that
Plaintiff has alleged a new violation committed on September 12, 2023, which
refreshes the statute of limitations for each violation which is committed. (Consumer
Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150
Cal.App.4th 953, 981.)
Defendant relies on Shamsian v.
Atlantic Richfield Co. (2003) 107 Cal.App.4th 967 for their statute of
limitations argument. However, Shamsian does not support Defendant’s
position. Although the Court of Appeal in Shamsian held that the
plaintiffs’ claim under Proposition 65 was barred by the one year statute of
limitations, the only issue before the Shamsian Court on that claim was
whether the statute of limitations was one year, as the Court of Appeal found,
or three years, which it rejected. (Shamsian, supra, 107 Cal.App.4th at
977-78.) The Court of Appeal specifically noted, in finding that the
plaintiffs’ claims were barred, that they had offered no argument that the
claim survived the one-year statute of limitations. (Id., at 978-79.)
“An opinion is not authority for a point not raised, considered, or resolved
therein.” (Styne v. Stevens (2001) 26 Cal.4th 42, 57.)
Plaintiff has offered authority which
directly supports its position that the Proposition 65 claims survive the
one-year statute of limitations by way of the continuing violation doctrine,
and Defendant has offered no valid authority to the contrary. (Consumer
Advocacy Group, supra, 150 Cal.App.4th at 981.) Moreover, if
the court were to adopt Defendant’s position, the effective result would be to
create a perverse incentive where a potential violator of Proposition 65 might
best be served by doing nothing to correct the violation until the statute of
limitations has lapsed with respect to that claimant, rather than correct the
deficiencies identified by a notice. Such an outcome would be contrary to the
express purposes of Proposition 65 on its face, and the court refuses to
countenance that scenario. Defendant’s attack on the complaint as barred by the
statute of limitations is not persuasive.
3.
Injunctive Relief
Defendant argues that Plaintiff’s
request for injunctive relief in the complaint is moot as Defendant has already
stopped the sale of the product at issue from Defendant’s website. (Demurrer,
at p. 20.) Defendant contends that the product was only sold from November 26,
2018 to July 9, 2021 and Defendant has decided not to re-start the sale of the
product. (Ibid.) Thus, Defendant argues that there is no pending
controversy related to the continued sale of the product making Plaintiff’s
demand for injunctive relief moot. (Ibid.)
The court does not find that a
demurrer is the proper method to rule on Defendant’s arguments regarding
whether Plaintiff’s request for injunctive relief is moot. “A demurrer tests
the pleading alone, and not the evidence or facts alleged.” (E-Fab, Inc.
v. Accountants, Inc. Servs., supra, 153 Cal.App.4th 1315.)
4.
Collateral Estoppel
Defendant
argues that Plaintiff had previously filed suit on March 15, 2023 based on the
allegations made in the March 30, 2022 notice but subsequently dismissed the action.
(Demurrer, at pp. 12-13.) Defendant contends that collateral
estoppel preempts Plaintiff from filing the instant action after dismissing its
March 15, 2023 suit. (Id., at pp.
20-21.) However, Defendant concedes that not all elements of collateral
estoppel are met. As such, the court will not entertain Defendant’s argument.
III.
Motion to Strike
A.
Legal Standard
Pursuant to Code of Civil Procedure section
436, “the court may, upon a motion made pursuant to Section 435, or at any time
in its discretion, and upon terms it deems proper: (a) Strike out any
irrelevant, false, or improper matter inserted in any pleading. (b) Strike out
all or any part of any pleading not drawn or filed in conformity with the laws
of this state, a court rule, or an order of the court.” The grounds for a
motion to strike must “appear on the face of the challenged pleading or from
any matter of which the court is required to take judicial notice.” (Code Civ.
Proc., § 437.)
B.
Discussion
Defendant
moves to strike Plaintiff’s demands for civil penalties in the complaint on the
grounds that they are barred by the applicable statute of limitations. (Motion
to Strike, at pp. 11-12.) Defendant also moves to strike Plaintiff’s demand for
injunctive relief on the grounds that such request is moot. (Id., at p.
16.)
Defendant
makes the same arguments as its demurrer to support its motion to strike. Accordingly,
for the reasons stated above, Defendant’s Motion to Strike is denied.
IV.
Conclusion
1.
Defendant Paparazzi LLC’s Demurrer to Plaintiff’s Complaint is OVERRULED.
2.
Defendant Paparazzi LLC’s Motion to Strike Portions of Plaintiff’s
Complaint is DENIED.