Judge Thomas D. Long, Case Number: 19STLC08619, Date: 2024-05-28 Tentative Ruling

On September 18, 2019, Plaintiff Consumer Advocacy Group, Inc. filed this Proposition 65 action against Defendants Santa Williams-Sonoma Inc., Trader Joe’s Company, and Trader Joe’s East Inc. The operative complaint is the first amended complaint, filed on January 21, 2020.

Defendants’ Request for Judicial Notice of Exhibits A, B, I, J-M is denied as irrelevant. These orders are unpublished and nonprecedential. (See Santa Ana Hospital Medical Center v. Belshe (1997) 56 Cal.App.4th 819, 831 [“a written trial court ruling has no precedential value”].)

Defendants’ Request for Judicial Notice of Exhibits E, F is denied as unnecessary. These documents are already part of this case’s record.

Defendants’ Request for Judicial Notice of Exhibit N is denied. Defendants use this exhibit for the truth of its contents, of which the Court cannot take judicial notice.

Plaintiff’s Request for Judicial Notice of Exhibits 1, 7 is denied. The Court cannot take judicial notice of the contents of this document.

Plaintiff’s Request for Judicial Notice of Exhibits 2, 5-6, 8, 12, 14-18 is denied as irrelevant. These orders are unpublished and nonprecedential.

Plaintiff’s Request for Judicial Notice of Exhibits 9-11 is denied as irrelevant.

A motion for judgment on the pleadings is the functional equivalent to a general demurrer. (Lance Camper Mfg. Corp. v. Republic Indemnity Co. of Am. (1996) 44 Cal.App.4th 194, 198.) Like demurrers, motions for judgment on the pleadings challenge the legal sufficiency of the allegations, not their veracity. (Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994.) The Court “must accept as true all material facts properly pleaded, but does not consider conclusions of law or fact, opinions, speculation, or allegations contrary to law or facts that are judicially noticed.” (Stevenson Real Estate Services, Inc. v. CB Richard Ellis Real Estate Services, Inc. (2006) 138 Cal.App.4th 1215, 1219-1220.)

“Before bringing a Prop. 65 action in the public interest, a private plaintiff must provide a pre-suit notice containing sufficient information about the claim to (1) the Attorney General and other public prosecutors, to allow them to adequately investigate the claim’s basis, and (2) the alleged violator, to allow it an opportunity to cure the violation. . . . Failure to comply with pre-suit notice requirements is grounds for dismissal, and deficiencies cannot be cured after the complaint is filed.” (Council for Education & Research on Toxics v. Starbucks Corp. (2022) 84 Cal.App.5th 879, 899-900 (Starbucks Corp.).)

One requirement of the pre-suit notice is that it must identify “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, subd. (b)(2)(A).)

Defendants argue that the pre-suit notices that Plaintiff served did not comply with the pre-suit notice requirements because they did not identify a responsible individual “within” Plaintiff.

Plaintiff argues that “meaning of ‘within the entity’ must be interpreted in a manner consistent with the purpose of the regulations” because “[t]he purpose of the notice and its contents is to facilitate communication and the flow of information to provide alleged violators and public enforcers an opportunity to assess the merits of a notice.” (Opposition at p. 6.) Accordingly, Plaintiff argues that it substantially complied with the notice requirement and “CAG’s notices to Defendants make clear that it has opted to designate its attorney as its agent for communication concerning the notice.” (Id. at p. 8.)

“When a court attempts to discern the meaning of a statute, ‘it is well settled that we must look first to the words of the statute, “because they generally provide the most reliable indicator of legislative intent.” [Citation.] If the statutory language is clear and unambiguous our inquiry ends. “If there is no ambiguity in the language, we presume the Legislature meant what it said and the plain meaning of the statute governs.” [Citations.] In reading statutes, we are mindful that words are to be given their plain and commonsense meaning.’ [Citation.]” (Meyer v. Sprint Spectrum L.P. (2009) 45 Cal.4th 634, 639-640.)

“Although courts sometimes construe statutory mandates liberally to effectuate their remedial purpose [citation], strict compliance with a statute is warranted when our Legislature evinces its intent that the statute’s requirements are to be followed precisely. We may infer such an intent when (1) ‘the Legislature has provided a detailed and specific mandate’ [citations], or (2) ‘the intent of [the] statute can only be served by demanding strict compliance with its terms’ [citation].” (Prang v. Los Angeles County Assessment Appeals Board No. 2 (2020) 54 Cal.App.5th 1, 19 (Prang).)

The plain language of Proposition 65 provides a detailed and specific mandate. The notice of the violation “shall mean a notice meeting all requirements of this section,” and “[n]o person shall commence an action to enforce the provisions of the Act . . . except in compliance with all requirements of this section.” (Cal. Code Regs., tit. 27, § 25903, subd. (a).) One of these requirements is identifying “the name, address, and telephone number of the noticing individual or a responsible individual within the noticing entity and the name of the entity” within the notice. (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(A).) This is a specific requirement for who the individual must be.

By contrast, other requirements for the notice are more generalized. For example, the notice shall identify “the approximate time period during which the violation is alleged to have occurred.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(A).) For drinking water violations, the notice shall include “a general identification of the discharge or release and of the source of drinking water into which the discharges are alleged to have occurred.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(B).) “Approximate” and “general” are less specific requirements under their plain language.

Plaintiff argues that Defendants’ definition of “responsible individual within the entity” would “frustrate the purpose of the regulations.” (Opposition at p. 6.) This is essentially an argument that the intent of the statute (“to provide information to public enforcers and alleged violators to assess the nature and scope of the alleged violation,” id. at p. 5) can still be served without strict compliance. (Cf. Prang, supra, 54 Cal.App.5th at p. 19 [intent for strict compliance can be inferred when “the intent of [the] statute can only be served by demanding strict compliance with its terms”].) However, Plaintiff does not refute that “the Legislature has provided a detailed and specific mandate,” from which the Court may infer the Legislature’s intent that the statute’s requirements are to be followed precisely. (Ibid.)

It is true that “substantial compliance with statutory directives will suffice if the purpose of the statute is thereby satisfied.” (Downtown Palo Alto Com. for Fair Assessment v. City Council (1986) 180 Cal.App.3d 384, 395; see In re K.H. (2022) 84 Cal.App.5th 566, 603-604.) However, the Final Statement of Reasons for Section 12903 (“FSOR”), on which Plaintiff relies (Opposition at pp. 5-7, 10-12), does not prove that the purpose of section 25903 is satisfied by identifying the noticing entity’s attorney. The FSOR notes that “many notices do not describe the nature of the alleged violation in an intelligible manner,” which makes it difficult or impossible for the alleged violator to cure any violation prior to litigation, thereby impeding the achievement of the goals of the statute through quick compliance. (Pl. RJN, Ex. 3 at pp. 7-8.) The notice’s required information is “intended to ensure that notices provide adequate information necessary for the recipients to evaluate the nature and scope of the alleged violation.” (Id. at p. 8.) With respect to identifying the responsible individual within the noticing entity, “Identification of the party giving the notice is needed to give the receiving parties an opportunity to contact the noticing party to resolve the issues raised in the notice and to identify who will be entitled to pursue a civil action.” (Ibid.) Identifying the noticing entity’s attorney, rather than an individual within the entity, is contrary to the goal of curing violations without litigation.

Plaintiff further argues about substantial compliance, citing Stasher v. Harger-Haldeman (1962) 58 Cal.2d 23 (Stasher). (Opposition at p. 14.) Plaintiff characterizes this case as one where courts “routinely held that requirements subject to a preceding “shall” are satisfied by substantial compliance.” (Ibid.) According to Plaintiff, “the California Supreme Court has found that a former civil code section requiring that a document ‘shall recite’ a specified list of items was satisfied by substantial compliance.” (Ibid.) In Stasher, the California Supreme Court made clear that “[s]ubstantial compliance . . . means actual compliance in respect to the substance essential to every reasonable objective of the statute. But when there is such actual compliance as to all matters of substance[,] then mere technical imperfections of form or variations in mode of expression” should not be considered noncompliance. (Stasher, supra, 58 Cal.2d at p. 29.) The Court affirmed that the sales contract at issue was substantially compliant because it contained the essential details, and the imperfections were in complying with the letter of the statute while fully complying with the substance and spirit of the statute. (Id. at pp. 31-33.)

Here, Plaintiff’s notice does not comply with all matters of substance. It is undisputed that only Reuben Yeroushalmi was identified; he is an agent of Plaintiff as its attorney, but he is not “within” Plaintiff’s entity. Thus, the notice identifies a substantively different individual than what is required by the statute.

Plaintiff also argues that he should be considered the appropriate contact person because Proposition 65 cases can be very complicated: “Given that the purpose of the contact information requirement in Section 25903 is to facilitate communication concerning the details of the violation with both public enforcers and violators, and given the scientifically-intensive and complex issues of law and fact involved in assessing an alleged violation, construing ‘responsible individual within the entity’ to preclude an enforcer from designating its attorney would frustrate the purpose of the regulations.” (Opposition at p. 6.) But if that was what the Legislature had intended, then it could have required the identification of any individual who can speak on behalf of the entity, rather than an individual “within” the entity. Plaintiff’s interpretation would render “within” meaningless, and “[i]nterpretations that render statutory language meaningless are to be avoided.” (Plantier v. Ramona Municipal Water Dist. (2019) 7 Cal.5th 372, 386.)

Plaintiff also compares the purpose of the required information here to the purpose of the certificate of merit, deeming them both to be methods of contacting the noticing entity. (See Opposition at pp. 5-12.) This comparison actually weighs against Plaintiff’s argument because that statutory language expressly permits counsel to sign the certificate of merit: “the notice of the alleged violation shall include a certificate of merit executed by the attorney for the noticing party, or by the noticing party, if the noticing party is not represented by an attorney.” (Health & Saf. Code, § 25249.7, subd. (d)(1).) This confirms that if the Legislature had intended for outside counsel to be the designated individual under section 25903, subdivision (b)(2)(A), it would have stated so.

Plaintiff cites Yeroushalmi v. Miramar Sheraton (2001) 88 Cal.App.4th 738 (Miramar) for that court’s “emphasis on the purpose of the notice requirements, both in interpreting those requirements and in evaluating compliance therewith.” (Opposition at p. 9; see id. at p. 5.) There, the information that was argued to be in substantial compliance was information about the violation itself. (Miramar, supra, 88 Cal.App.4th at pp. 745-746.) One notice was “inadequate by any measure, because it fails to state, in even the simplest terms, just what the violation was.” (Id. at p. 746.) Two other notices also “[did] not even give enough information to discern just what the violation was.” (Id. at p. 747.) The noticing entities argued that “the statute must be given a broad interpretation, to further its basic remedial objectives,” and therefore “their broad general notices should be deemed sufficient.” (Ibid.) The court focused on the requirement that the notice include the name of the product “with sufficient specificity” and the location of exposure “in a manner sufficient to distinguish those facilities or sources from others for which no violation is alleged.” (Id. at pp. 745-746 [quoting Cal. Code Regs., tit. 27, § 25903, subds. (b)(2)(D), (b)(2)(F)].) The court “conclude[d] that the framers of the initiative intended that the notice contain sufficient facts to facilitate and encourage the alleged polluter to comply with the law, and to encourage the public attorney charged with enforcement to undertake its duty,” and the notices at issue—lacking sufficient facts to identify the alleged violation—gave “no notice at all.” (Id. at p. 750.) The Miramar court had to consider what information was “sufficient”—an undefined and ambiguous term. Here, there is no ambiguity: the notice “shall identify . . . a responsible individual within the noticing entity.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(A).)

Plaintiff relies heavily on Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of America (2007) 150 Cal.App.4th 953 (Kintetsu). (See Opposition at pp. 5-6, 9-13, 17.) In that case, “Circle K Stores, Inc. was erroneously sued as Circle K Co., and Circle K. Citing no legal authority, it argues that the notice was insufficient because it was incorrectly named.” (Kintetsu, supra, 150 Cal.App.4th at p. 972.) The Court of Appeal determined that Circle K forfeited its right to contest the notice on the ground that it was improperly named because by filing a demurrer, it had sought a dismissal on grounds other than personal jurisdiction. (Ibid.) Plaintiff argues that the Court of Appeal’s rejection of Circle K’s “challenge to the validity of the notice on the grounds that it failed to strictly comply with Section 25903(B)(2)(a)’s requirement that the notice ‘shall identify . . . the name of the alleged violator’ . . . is manifestly at odds with Defendants’ contention that the requirements Section 25903(B)(2)(a) are subject to strict compliance.” (Opposition at p. 12.) According to Plaintiff, if strict compliance was required, the then failure to correctly identify “the name of the alleged violator” “would have been grounds for dismissal in its own right, independent of any challenge to personal jurisdiction.” (Id. at pp. 12-13.) The court did not analyze whether the notice was substantially compliant despite the incorrect name of the violator, and “cases are not authority for propositions not considered.” (B.B. v. County of Los Angeles (2020) 10 Cal.5th 1, 11, quotation marks omitted.)

The Kintetsu court did, however, consider the notice requirements with respect to the inclusion of mandatory information. (Kintetsu, supra, 150 Cal.App.4th at pp. 973-974.) Section 12903, subdivision (b)(1) states that 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.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(1).) The court concluded that the failure to follow that requirement rendered the notice invalid because the notice failed to satisfy a mandatory prerequisite. (Kintetsu, supra, 150 Cal.App.4th at pp. 973-974.) Plaintiff’s notice here also fails to satisfy a mandatory prerequisite: it does not identify “a responsible individual within the noticing entity.”

The Court finds that the pre-suit notice requirements that are the subject of this motion are identified in a detailed and specific mandate, so the “Legislature evinces its intent that the statute’s requirements are to be followed precisely.” (Prang, supra, 54 Cal.App.5th at p. 19.) Additionally, the specific use of the terms “shall” and “all” confirm that the Legislature intended that “all” requirements identified “shall” be satisfied as a prerequisite to commencing a Proposition 65 action. Therefore, the Court concludes that the notice requirements must be strictly construed and that substantial compliance is insufficient. As a result, the notice requirements must include all required information, including the responsible individual within the noticing entity.

On September 2, 2018 and November 6, 2018, Plaintiff issued pre-suit notices of violation against Defendants. (Def. RJN, Exs. C-D.) Each notice states, “Violators may contact CAG concerning this Notice through its designated person, its attorney, Reuben Yeroushalmi . . . .” The Certificates of Merit also identify Reuben Yeroushalmi as “the attorney for the noticing party.” Plaintiff concedes that Reuben Yeroushalmi is only an agent of Plaintiff as its attorney. (See Opposition at pp. 8-10.)

Because the notices did not include the required identifying information of “a responsible individual within the noticing entity,” they are noncompliant, and the action is subject to dismissal. (See Starbucks Corp., supra, 84 Cal.App.5th at pp. 899-900.)

The motion for judgment on the pleadings is GRANTED in favor of Santa Williams-Sonoma Inc., Trader Joe’s Company, and Trader Joe’s East Inc.

Because “deficiencies [of the notice] cannot be cured after the complaint is filed” (Starbucks Corp., supra, 84 Cal.App.5th at pp. 899-900), no leave to amend is granted.

A Non-Appearance Case Review re: Submission of Proposed Judgment is scheduled for June 5, 2024 at 9:00 a.m.

Parties who intend to submit on this tentative must send an email to the Court at SMCDEPT48@lacourt.org indicating intention to submit. If all parties in the case submit on the tentative ruling, no appearances before the Court are required unless a companion hearing (for example, a Case Management Conference) is also on calendar.

Hon. Thomas D. Long

Judge of the Superior Court