Judge Ronald F. Frank, Case Number: 23TRCV00781, Date: 2024-02-02 Tentative Ruling

Judge: Ronald F. Frank, Case: 23TRCV00781, Date: 2024-02-02 Tentative Ruling

Case Number: 23TRCV00781 Hearing Date: February 2, 2024 Dept: 8

Tentative Ruling

HEARING DATE: February 2, 2024

CASE NUMBER: 23TRCV00781

CASE NAME: Calsafe Research Center, Inc. v. Maruchan, Inc., et al.

MOVING PARTY: (1) Defendant, Maruchan

RESPONDING PARTY: (1) Plaintiff, Calsafe Research Center, Inc (Non-Opposition)

TRIAL DATE: Not Set

MOTION: (1) Demurrer

(2) Motion to Strike

Tentative Rulings: (1) Demurrer is SUSTAINED; the Court will take oral argument form Plaintiff as to whether it can successfully amend in light of the deficiencies in the operative pleading

(2) Motion to Strike is MOOTED

I. BACKGROUND

A. Factual

On March 17, 2023, Plaintiff, Calsafe Research Center, Inc (“Plaintiff” or “CRC”) filed a Complaint against Defendant, Maruchan, Inc. (“Defendant”) and DPES 1 through 10. On May 5, 2023, Plaintiff filed a First Amended Complaint (“FAC”) alleging a cause of action for: (1) Violation of Proposition 65. The facts in this case are based on Plaintiff’s allegation that Defendant failed to warn citizens of the State of California about the presence of lead in the Defendants’ Maruchan, Ramon Noodle Soup Beef Flavor, Net Wt. 85g and Maruchan, Ramon Noodle Soup Chicken Flavor, Net Wt. 85g offered for sale throughout the State of California

Defendant now brings a Demurrer and Motion to Strike portions of the FAC.

B. Procedural

On January 5, 2024, Defendant Maruchan, filed a Demurrer and Motion to Strike. On January 22, 2024, Plaintiff, Calsafe Research Center, Inc. filed a notice of non-opposition to the Demurrer and Motion to Strike, and instead Requested Leave to File Second Amended

Complaint (“SAC”). On January 25, 2024, Maruchan filed reply briefs seeking to hae the demurrer sustained without leave to amend.

II. REQUEST FOR JUDICIAL NOTICE

Defendant requested this Court take Judicial Notice of the following documents:

1. Exhibit A - the Final Statement of Reasons issued by the Office of Environmental Health Hazard Assessment (“OEHHA”) regarding adoption of section 12903, Notices of Violation, Title 22, Division 2, California Code of Regulations, which has since been renumbered at California Code of Regulations, title 27, section 25903.

2. Exhibit B - Maruchan’s Request for Judicial Notice in Support of Maruchan’s Motion for Change of Venue, filed with the Court on June 1, 2023.

3. Exhibit C – the Court’s tentative ruling for Maruchan’s Motion for Change of Venue.

4. Exhibit D - screenshot image of the California Secretary of State’s website taken on December 12, 2023, which lists Stater Bros. Markets’ “Principal Address” is located in San Bernardino in San Bernardino County, California.

5. Exhibit E - the Court’s July 25, 2023, Minute Order with the Court’s final ruling on Maruchan’s June 1, 2023, Motion for Change of Venue.

6. Exhibit F - CRC’s First Amended Complaint, which CRC filed on May 15, 2023.

7. Exhibit G - CRC’s original Complaint against Maruchan, filed May 17, 2023.

8. Exhibit H - Maruchan’s Motion for Change of Venue, filed June 1, 2023, including the Memorandum of Points and Authorities and Declaration of Alex C Verdegem with Exhibits.

9. Exhibit I - CRC’s July 12, 2023 Opposition to Maruchan’s Motion for Change of Venue.

10. Exhibit J - of opinion and decision of the court in the matter of Ecological Alliance v. Trader Joe’s Co. (21STCV4264), decided in Los Angeles Superior Court on April 12, 2022 with highlights for the Court’s convenience.

11. Exhibit K - opinion and decision of the court in the matter Van Patten v. Bush Bros. & Co. (37-2020-00026752-CU-MC-CTL) decided in San Diego Superior Court on March 12, 2021 with highlights for the Court’s convenience.

12. Exhibit L - comparison of the mandatory Certificate of Merit text specified in California Code of Regulations, title 11, section 3101(b) against the text of the Certificate of Merit attached and incorporated into CRC’s FAC. The deviations in CRC’s Certificate of Merit compared to the required regulatory text are marked in red for the Court’s convenience

The Court GRANTS Defendant’s request and takes judicial notice of the above documents.

III. ANALYSIS

A. Demurrer

Legal Standard

A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. (Blank v. Kirwan

(1985) 39 Cal.3d 311, 318.) “To survive a demurrer, the complaint need only allege facts sufficient to state a cause of action; each evidentiary fact that might eventually form part of the plaintiff’s proof need not be alleged.” (C.A. v. William S. Hart Union High School Dist. (2012) 53 Cal.4th 861, 872.) For the purpose of testing the sufficiency of the cause of action, the demurrer admits the truth of all material facts properly pleaded. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967.) A demurrer “does not admit contentions, deductions or conclusions of fact or law.” (Daar v. Yellow Cab Co. (1967) 67 Cal.2d 695, 713.)

A pleading is uncertain if it is ambiguous or unintelligible. (Code Civ. Proc., § 430.10, subd. (f).) A demurrer for uncertainty may lie if the failure to label the parties and claims renders the complaint so confusing defendant cannot tell what he or she is supposed to respond to. (Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 139, fn. 2.) However, “[a] demurrer for uncertainty is strictly construed, even where a complaint is in some respects uncertain, because ambiguities can be clarified under modern discovery procedures.” (Khoury v. Maly's of California, Inc. (1993) 14 Cal.App.4th 612, 616.)

Discussion

Maruchan demurs to Plaintiff’s FAC on the grounds it argues CRC’s FAC fails to state a cause of action against Maruchan because CRC failed to serve a legally compliant pre-suit 60-day notice of violation, which is a mandatory prerequisite to confer authority on a private plaintiff to file a private action to enforce Proposition 65. Plaintiff has brought this action pursuant to the private attorney general provision of Health & Safety Code § 25249.7, subd. (d). That subsection allows a person to bring an action in the public interest for violations of Section 25249.5 or 25249.6 given two conditions: (1) the person has satisfied the statutory 60-day requirement; and (2) “[n]either the Attorney General, a district attorney, a city attorney, nor a prosecutor has commenced and is diligently prosecuting an action against the violation.” (Health & Safety Code § 25249.7, subd. (d).) Specifically, Defendant Maruchan takes issue with the fact that Plaintiff CRC failed to provide a 60-day notice in compliance with California Code of Regulations, title 27, § 25903(b)(2)(C), which states: “[f]or all notices of violation of Section 25249.6 of the Act, the route of exposure by which exposure is alleged to occur (e.g., by inhalation, ingestion, dermal contact).” However, Maruchan asserts that CRC’s notice does not state “dermal exposure” as a potential exposure route, but is included in an allegation in the FAC.

Further, Maruchan asserts that CRC failed to comply with Health & Safety Code § 25249(d)(1), which requires that the notices be served on each alleged violator, the Attorney General, the district attorney of every county in which a violation is alleged to have occurred, and upon the city attorneys of any cities with populations according to the most recent decennial census of over 750,000 and in which the violation is alleged to have occurred. (Cal. Code Regs., tit. 27, § 25903(c)(3).) Maruchan argues that Plaintiff’s statement that it sent copies of its notices to every district attorney in the state is false as, defendant contends, Plaintiff failed to send copies to the district attorneys in Orange County or in San Bernardino County. Defendant Maruchan contends this noncompliance is based on the fact that Plaintiff CRC failed to list these agencies in its certificate of service.

Lastly, Maruchan asserts that CRC’s certificate of merit is defective and references to it should be stricken. Maruchan contends that CRC’s assertion that it attached a “Certificate of Merit” to its notice, but only one certificate of merit was actually attached and that certificate does not provide the required statements or information that are strictly required for compliance. Specifically, four out of five statements in CRC’s certificate of merit do not comply with the statutory language for a Code-compliant certificate of merit under California Code of Regulations, title 11, section 3101. Further, Maruchan asserts that CRC’s notice references two “violators” – Maruchan, a food producer, and Stater Bros. market, a food retailer, and that the inclusion of two companies from completely different points in the stream of commerce renders the Notice uncertain regarding potential liability. Maruchan contends that CRC’s notice does not provide information regarding Stater Bros. Market’s allegations of liability.

Here, the Court agrees with Maruchan, and notes that the notice requirements are not in compliance, as well as the uncertainty with involving Stater Bros. Market. However, instead of filing an opposition, Plaintiff CRC contends that it attempted to, on January 19, 2024, file a Second Amended Complaint in response to Defendant’s Demurrer without an order from this Court granting leave to do so. Plaintiff appears to misinterpret the relevant statutory precedent when asserting that the rejection of its proposed SAC was improper. A party may amend its pleading one time without leave of the court. (Code Civ. Proc. § 472.) Since Plaintiff had not sought leave from this Court to amend its pleading, the Clerk correctly did not accept such a filing.

Here, this Court is inclined to SUSTAIN the demurrer. The Court will consider oral argument as to whether leave to amend will be granted.

B. Motion to Strike

Here, because Maruchan’s Motion to Strike is based on the same arguments filed in the demurrer and seek to strike the documents not in compliance with the statutory requirements, this Courts sustaining of the demurrer effectively moots the Motion to Strike.

IV. CONCLUSION

For the foregoing reasons, Defendant Maruchan’s Demurrer is SUSTAINED. Defendant Maruchan’s Motion to Strike is MOOTED.

Defendant Maruchan is ordered to give notice.