Judge Teresa A. Beaudet, Case Number: 23STCV28296, Date: 2024-08-09 Tentative Ruling

Plaintiff The Chemical Toxin Working Group Inc. doing business as Healthy Living Foundation Inc. (“Plaintiff”) filed this Proposition 65 action on November 17, 2023 against Defendant Santa Barbara Fish Market, Inc. The Complaint alleges ten causes of action for “Violation of Health & Safety Code § 25249.6, Failure to Provide Clear and Reasonable Warning under Proposition 65.”

The Complaint alleges, inter alia, that “[t]his action seeks injunctive and declaratory relief and civil penalties to remedy the continuing failure of [Defendant] to warn consumers in California that they are being exposed to Lead and Cadmium, chemicals known to the State of California to cause cancer and reproductive toxicity found in (1) Santa Barbara Fish Market California Grassy Bar Oysters…(2) Santa Barbara Fish Market Littleneck Clams…(3) Santa Barbara Fish Market Manila Clams…(4) Santa Barbara Fish Market Bluepoint Oysters…and (5) Santa Barbara Fish Market Santa Barbara Hope Ranch Mussels…” (Compl., ¶ 1.)

Defendant now moves for an order transferring this case to Santa Barbara County and for sanctions against Plaintiff. Plaintiff opposes.

Pursuant to Code of Civil Procedure section 397, subdivision (a), “[t]he court may, on motion, change the place of trial in the following cases: (a) When the court designated in the complaint is not the proper court.”

In Fontaine v. Superior Court (2009) 175 Cal.App.4th 830, 836, cited by Defendant, the Court of Appeal noted that “[t]he court may, on timely motion, order transfer of an action [w]hen the court designated in the complaint is not the proper court. The moving party must overcome the presumption that the plaintiff has selected the proper venue. Thus, [i]t is the moving defendant’s burden to demonstrate that the plaintiff’s venue selection is not proper under any of the statutory grounds. In opposing the motion to change venue, [t]he plaintiff may bolster his or her choice of venue with counteraffidavits consistent with the complaint’s theory of the type of action but amplifying the allegations relied upon for venue.” (Internal quotations and citations omitted.) The Fontaine Court noted that “[p]ursuant to section 395, subdivision (a), the general venue rule is that ‘the superior court in the county where the defendants or some of them reside at the commencement of the action is the proper court for the trial of the action.’…For venue to be proper in a county other than the county in which a defendant resides, the action must fall within a statutory exception.” (Id. at p. 837.)[2]

Defendant asserts that under Code of Civil Procedure section 395.5, venue is improper in Los Angeles County, and is proper in Santa Barbara County. Code of Civil Procedure section 395.5 provides that “[a] corporation or association may be sued in the county where the contract is made or is to be performed, or where the obligation or liability arises, or the breach occurs; or in the county where the principal place of business of such corporation is situated, subject to the power of the court to change the place of trial as in other cases.”

Defendant asserts that “[t]he first of section 395.5’s options does not apply to this action because [Defendant] neither alleges any contract, nor asserts any claim that places a contract at issue.” (Mot. at p. 8:12-13.) This does not appear to be disputed by Plaintiff in the opposition.

Next, Defendant asserts that “section 395.5’s second venue option—the county in which the subject obligation or liability arose—appears to countenance venue in the county where SB Fish Market allegedly committed the act or omission that violated Proposition 65.” (Mot. at p. 8:16-18.) Defendant notes that “[f]or purposes of laying venue, a liability ‘arises’ where the injury occurs. Injury ‘means a wrongful invasion of legal rights.’” (Black Diamond Asphalt, Inc. v. Superior Court (2003) 109 Cal.App.4th 166, 172 [internal citations omitted].)

As set forth above, Plaintiff alleges in the Complaint that “[t]his action seeks injunctive and declaratory relief and civil penalties to remedy the continuing failure of [Defendant] to warn consumers in California that they are being exposed to Lead and Cadmium, chemicals known to the State of California to cause cancer and reproductive toxicity found in (1) Santa Barbara Fish Market California Grassy Bar Oysters (‘Bar Oysters’), (2) Santa Barbara Fish Market Littleneck Clams (‘Littleneck Clams’), (3) Santa Barbara Fish Market Manila Clams (‘Manila Clams’), (4) Santa Barbara Fish Market Bluepoint Oysters (‘Bluepoint Oysters’), and (5) Santa Barbara Fish Market Santa Barbara Hope Ranch Mussels (‘Mussels’), (with the Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, and Mussels together referred to as the ‘Products).” (Compl., ¶ 1.) Plaintiff alleges that “Defendants, therefore, have knowingly and intentionally exposed the users of the Products to Lead and Cadmium without first giving a clear and reasonable warning to such individuals.” (Compl., ¶ 29.)

Defendant asserts that Santa Barbara County “is the only county in which SB Fish Market could have posted, affixed, or otherwise communicated a ‘clear and reasonable’ warning about cadmium and lead present in its Grassy Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, or Hope Ranch Mussels, whether such warning was presented in a physical or digital format, or communicated verbally.” (Mot. at p. 9:15-18.) Defendant asserts that “[i]t therefore follows that the obligation or liability at issue arose in Santa Barbara County.” (Mot. at p. 9:19.)

Defendant submits the Declaration of Brian Colgate, Defendant’s president. (Colgate Decl., ¶ 1.) Mr. Colgate states that “[a]t the time [Plaintiff] filed the Complaint, and throughout the preceding decade, SB Fish Market neither owned nor operated any offices or other facilities in Los Angeles County.” (Colgate Decl., ¶ 10.) In addition, Mr. Colgate states that “[a]t the time [Plaintiff] filed the Complaint, and throughout the preceding decade, SB Fish Market employed no personnel who performed services for SB Fish Market in Los Angeles County.” (Colgate Decl., ¶ 11.) Mr. Colgate further states that “[t]hroughout the decade preceding the filing of [Plaintiff’s] Complaint, SB Fish Market’s principal place of business was located at 117 Harbor Way, Ste. A, Santa Barbara, CA 93109…117 Harbor Way, Ste. A, Santa Barbara, CA 93109 is in Santa Barbara County…SB Fish Market’s only opportunity to post or recite a warning to in-person shoppers would have been before they purchased Grassy Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, or Hope Ranch Mussels at SB Fish Market’s retail storefront.” (Colgate Decl., ¶¶ 5-7.)

In addition, Mr. Colgate states that “SB Fish Market’s only opportunity to provide online or phone shoppers with a warning about any lead or cadmium found in Grassy Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, or Hope Ranch Mussels would have been to post such warning on the SB Fish Market website, or to express it over the phone, as applicable.” (Colgate Decl., ¶ 8.) Mr. Colgate states that “[a]t the time [Plaintiff] filed the Complaint, and throughout the preceding decade, SB Fish Market ran its website from a server located and maintained in Santa Barbara, California.” (Colgate Decl., ¶ 12.)

Mr. Colgate also states that “SB Fish Market’s only opportunity to affix a warning label to shellfish purchased online or by phone was after the shellfish were weighed and wrapped, but before the shipping box was sealed and dispatched.” (Colgate Decl., ¶ 9.) Mr. Colgate indicates that “[a]t the time [Plaintiff] filed the Complaint, and throughout the preceding decade, SB Fish Market packed and shipped all online and phone orders from our wholesale location in Santa Barbara County. The address of that location is 528 North Quarantina Steet, Santa Barbara. California 93103.” (Colgate Decl., ¶ 13.)

As to Code of Civil Procedure section 395.5’s third venue option, “the county in which SB Fish Market’s principal place of business is located,” (Mot. at p. 9:20-21), Defendant cites to Rosas v. Superior Court (1994) 25 Cal.App.4th 671. In Rosas, the Court of Appeal noted that “[i]n this petition for writ of mandate, petitioners challenge the grant of defendant corporation’s motion to change venue. The issue presented is whether a domestic corporation’s designation of the location of its ‘principal business office’ in its annual domestic stock corporation statement filed with the Secretary of State conclusively fixes the corporation’s ‘principal place of business’ for purposes of venue under Code of Civil Procedure section 395.5.” (Id. at p. 672.) The Court of Appeal “conclude[d] that it does, and grant[ed] the petition.” (Ibid.)

Mr. Colgate indicates that Defendant filed a Statement of Information with the California Secretary of State on July 10, 2023. (Colgate Decl., ¶ 4, Ex. 1.) This Statement of Information lists 117 Harbor Way, Suite A, Santa Barbara, CA 93109 as the “Principal Address” and “Mailing Address” for Santa Barbara Fish Market Inc. (Ibid.) Defendant asserts that accordingly, “under section 395.5’s third venue option, venue is improper in Los Angeles County, and proper in Santa Barbara County.” (Mot. at p. 9:27-28.) In the opposition, Plaintiff does not appear to dispute that Santa Barbara County is Defendant’s principal place of business.

In the opposition, Plaintiff asserts that a Proposition 65 action is an action “for the recovery of a penalty” such that Code of Civil Procedure section 393, subdivision (a) is applicable here. Code of Civil Procedure section 393, subdivision (a) provides that “[s]ubject to the power of the court to transfer actions and proceedings as provided in this title, the county in which the cause, or some part of the cause, arose, is the proper county for the trial of the following actions: (a) For the recovery of a penalty or forfeiture imposed by statute, except, that when it is imposed for an offense committed on a lake, river, or other stream of water, situated in two or more counties, the action may be tried in any county bordering on the lake, river, or stream, and opposite to the place where the offense was committed.” Plaintiff notes that the Complaint seeks, inter alia, “[a]n assessment of civil penalties pursuant to Health & Safety Code § 25249.7(b), against Defendants in the amount of $2,500 per day for each violation of Proposition 65.” (Compl., ¶ 65.)

Plaintiff appears to assert that here, the causes of action of the Complaint “arose” in Los Angeles County for purposes of Code of Civil Procedure section 393, subdivision (a) because Plaintiff “has documented consumer exposure in Los Angeles County.” (Opp’n at p. 6:6.) Plaintiff asserts that “[i]n the context of Proposition 65, a violation occurs anywhere and everywhere a consumer is exposed to the chemical in the product without a clear and reasonable warning.” (Opp’n at p. 5:27-28.) In support of this assertion, Plaintiff cites to Health and Safety Code section 25249.6, which provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”

Plaintiff submits the Declaration of David Steinman, Plaintiff’s Chief Officer. (Steinman Decl., ¶ 1.) In his declaration, Mr. Steinman states that “the attached exhibits refer to the products at issue in this matter, including, Grassy Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, and Santa Barbara Hope Ranch Mussels (collectively, ‘Products’), which I purchased on November 17, 2022, and February 7, 2023, online on the website www.sbfish,com. [sic] All Products were delivered to 1801 Chart Trail, Topanga, CA 90290, which is in Los Angeles County.” (Steinman Decl., ¶ 3.) Mr. Steinman also states in his supporting declaration that “[a]ttached as Exhibit L is a true and correct copy of the Santa Barbara Fish Market’s website’s page that represents: ‘Through our partnership with FedEx we are shipping fresh and frozen seafood to all 50 states. You can purchase any of our products through our website sbfish.com, and select the desired FedEx shipping method upon check out...All FedEx Express and Ground shipping is one day overnight (we do not ship 2day).” (Steinman Decl., ¶ 15, Ex. L.) Mr. Steinman’s declaration further provides that “[a]ttached as Exhibit K is a true and correct copy of the Santa Barbara Fish Market’s website’s page that represents the Defendant as ‘the largest wholesale provider of Santa Barbara seafood for the last 15 years’ who is shipping ‘seafood around the country with our fleet of trucks, FedEx and airfrieght six days a week.’” (Steinman Decl., ¶ 14, Ex. K.)

Plaintiff asserts that “venue is proper in Los Angeles County because the Plaintiff obtained and had products delivered to it in that county, and Defendant has not provided any evidence that its product sales were restricted to Santa Barbara County, or that violations only could have occurred in Santa Barbara County.” (Opp’n at p. 11:9-12.)

In the reply, Defendant counters that “[Plaintiff] fails to plead or prove that one or more individuals were exposed to lead or cadmium in SB Fish Market’s Products within Los Angeles County during the limitations period. That failure amounts to a failure to establish either that SB Fish Market’s supposed ‘obligation or liability’ (Code Civ. Proc., § 395.5), or ‘the cause, or some part of the cause’ (Code Civ. Proc., § 393, subd. (a)), arose in Los Angeles County.” (Reply at p. 3:14-18.) Defendant notes that “[t]he plaintiff’s theory of the action as set forth in the complaint determines the venue. Because the law favors the right of trial at the defendant’s residence, the complaint will be strictly construed against a plaintiff seeking to lay the venue elsewhere.” (Gallin v. Superior Court (1991) 230 Cal.App.3d 541, 544 [internal citation omitted].)

As noted by Plaintiff, the Complaint alleges that “[a]s a proximate result of acts by Defendants, persons in the course of doing business within the meaning of Health & Safety Code § 25249.11(b), individuals throughout the State of California, including in the County of Los Angeles, have been exposed to Lead and Cadmium without a clear and reasonable warning.” (Compl., ¶ 30, emphasis added.) Plaintiff further alleges that “[i]ndividuals are exposed to Lead and Cadmium when they ingest the Products.” (Compl., ¶ 27.) However, as noted by Defendant, Plaintiff does not appear to provide evidence that individuals in Los Angeles County were “exposed” to lead or cadmium without a clear and reasonable warning during the limitations period. As discussed, Mr. Steinman only appears to state that he purchased “Grassy Bar Oysters, Littleneck Clams, Manila Clams, Bluepoint Oysters, and Santa Barbara Hope Ranch Mussels (collectively, ‘Products’)” on November 17, 2022 and February 7, 2023, and that such Products were delivered to 1801 Chart Trail, Topanga, CA 90290, in Los Angeles County. (Steinman Decl., ¶ 3.) Mr. Steinman does not appear to provide evidence demonstrating that he ingested the subject products, or that he was exposed to lead or cadmium through the subject products.

Defendant also asserts that “[w]hether SB Fish Market offers overnight or other shipping to all 50 states is hardly relevant to whether an individual was exposed—i.e., ingested the Products—in Los Angeles County.” (Reply at p. 5:23-25.) Indeed, Plaintiff does not appear to provide evidence demonstrating that any individual in Los Angeles County was “exposed to Lead and Cadmium without a clear and reasonable warning.” (Compl., ¶ 30.) As discussed, Health and Safety Code section 25249.6, cited by Plaintiff, provides that “[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual, except as provided in Section 25249.10.”

Based on the foregoing, the Court finds that Defendant has met its burden of demonstrating that Santa Barbara County is the proper venue here.

Lastly, both parties seek sanctions. Defendant asserts that the Court should impose monetary sanctions against Plaintiff’s counsel under Code of Civil Procedure section 396b, subdivision (b). This provision provides as follows:

“In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. In determining whether that order for expenses and fees shall be made, the court shall take into consideration (1) whether an offer to stipulate to change of venue was reasonably made and rejected, and (2) whether the motion or selection of venue was made in good faith given the facts and law the party making the motion or selecting the venue knew or should have known. As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. Sanctions shall not be imposed pursuant to this subdivision except on notice contained in a party’s papers, or on the court’s own noticed motion, and after opportunity to be heard.” (Code Civ. Proc., § 396b, subd. (b).)

In his supporting declaration, Defendant’s counsel states that “[o]n June 25, 2024, I emailed [Plaintiff’s] counsel a written offer to stipulate to change of venue. Later that same day, [Plaintiff’s] counsel replied via email, rejecting the offer to stipulate.” (Kaplan Decl., ¶ 5, Ex. 3.)

In his email of June 25, 2024, Defendant’s counsel stated, inter alia, that “we are asking Plaintiff to stipulate to a change in venue for this case, transferring it to Santa Barbara County where it belongs. This request is made pursuant to sections 396a and 398 of the Code of Civil Procedure. Venue belongs in Santa Barbara as provided in section 395.5 of the Code of Civil Procedure.” (Ibid.) Plaintiff’s counsel’s email of June 25, 2024 provides, inter alia, that “[y]our request to stipulate to change of venue is likewise unreasonable and frivolous: the NOVd purchase was made online in LA county, delivered by the Defendant to LA county, therefore the violation of the law occurred in LA county, In addition, HLF claims that your client sells its products in the entire state of California via its website.” (Ibid.)

Defendant asserts that “[Plaintiff’s] counsel elected to file this action in Los Angeles County despite knowing that SB Fish Market’s principal place of business (and retail storefront) was located in Santa Barbara County.” (Mot. at p. 11:6-7.) In support of this assertion, Defendant points to Exhibit A to the Complaint, which lists addresses for Defendant in Santa Barbara, California. (Compl., ¶ 31, Ex. A, p. 1.)

As set forth above, sanctions may be awarded under Code of Civil Procedure section 396b, subdivision (b) in the Court’s discretion. In the opposition, Plaintiff asserts that it had a good faith belief that venue is proper in Los Angeles County. The Court finds that Plaintiff acted reasonably in presenting its position in the opposition, and thus declines to award sanctions against Plaintiff’s counsel.

Plaintiff also asserts that it “should be awarded fees and costs of defending from the motion.” (Opp’n at p. 12:2.) Plaintiff does not cite any legal authority supporting its request for sanctions. To the extent Plaintiff is relying on Code of Civil Procedure section 396b, subdivision (b), such provision permits “the payment to the prevailing party of reasonable expenses and attorney’s fees incurred in making or resisting the motion to transfer…” (Emphasis added.) Thus, the Court denies Plaintiff’s request for sanctions.

Based on the foregoing, the Court grants Defendant’s motion for an order transferring this case to Santa Barbara County.

Defendant’s request for sanctions is denied. Plaintiff’s request for sanctions is also denied.

[1]The Court notes that the sentence objected to in Defendant’s Objection No. 2 is contained in paragraph 4 of Mr. Wisdom’s declaration.

[2]In Delgado v. Superior Court (1977) 74 Cal.App.3d 560, 563, cited by Defendant, the Court of Appeal noted that “Defendant Lew Williams Chevrolet Center has its principal place of business in Sacramento County…This is the equivalent of ‘residence’ for venue purposes.”

Superior Court of California

County of Los Angeles

Department 50