Filed 9/28/26 Consumer Advocacy Group v. Walmart CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
CONSUMER ADVOCACY B336080 (Consol. with B338937,
GROUP, INC., B339083, B340687, B341210)
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. 22STCV21493)
v.
WALMART INC. et al.,
Defendants and Respondents.
[And four other cases.]
APPEALS from judgments of the Superior Court of
Consumer Advocacy Group, Inc. v. The Kroger Co. et al.
(No. 19STCV25041); Consumer Advocacy Group, Inc. v. Food
Land Market et al. (No. 19STCV18754 consol. with Nos.
19STCV35730 & 20STCV40297); Consumer Advocacy Group, Inc.
v. Philippine Foodtrade Corp. et al. (23STCV03836); Consumer
Advocacy Group, Inc. v. Williams-Sonoma, Inc. et al.
(No. 19STLC08619).
Los Angeles County. Mark A. Young, Jon R. Takasugi, Thomas
D. Long, and Barbara M. Scheper, Judges. Reversed and
remanded.
Yeroushalmi & Yeroushalmi and Reuben Yeroushalmi for
Plaintiff and Appellant.
Alston & Bird, Gregory S. Berlin, and Tracy Yao for
Defendants and Respondents Walmart Inc. and Wal-Mart.com
USA, LLC.
Greenberg Traurig, Willis M. Wagner, Karin L. Bohmholdt,
and Alexandra L. Lizano for Defendants and Respondents The
Kroger Co., The Kroger Co. of Michigan, Foods Co., and Santa
Maura Spice and Garlic Co., Inc.
Fisher & Phillips, Alden J. Parker, and David Witkin for
Defendant and Respondent Landau Uniforms, Inc.
Teraoka & Partners, Steven Garrett, and Steve Teraoka for
Defendant and Respondent JFC International, Inc.
Lewis Brisbois Bisgaard & Smith and Garth N. Ward for
Defendants and Respondents Miravalle Foods, Inc. and Bodega
Latina Corporation.
Tucker Ellis, Matthew I. Kaplan, and Anna-Sophie Tirre
for Defendants and Respondents Philippine Foodtrade Corp.,
Shun Fat Supermarket Inc., Tran’s Family, Inc., SF
Supermarket, Inc., and Aesquivel International Corp.
Rogers Joseph O’Donnell and James Robert Maxwell for
Defendants and Respondents Williams Sonoma, Inc., Trader Joe’s
Company, and Trader Joe’s East, Inc.
_________________________________
2
INTRODUCTION
These consolidated appeals arise out of a series of
enforcement actions filed by appellant Consumer Advocacy
Group, Inc. (CAG) against various respondents for alleged
violations of the Safe Drinking Water and Toxic Enforcement
Act of 1986 (Health & Saf. Code, § 25249.5 et seq.), adopted by
California voters as Proposition 65 (Proposition 65 or the Act).1
Before private individuals may bring an enforcement action in
the public interest under Proposition 65, they must provide a
60-day notice to certain prosecuting agencies and the alleged
violators. (§ 25249.7, subd. (d)(1)–(2).) The trial court dismissed
each action filed by CAG on the ground that CAG’s presuit
notices failed to comply with the regulations implementing
Proposition 65, which require that the notice include the contact
information of “a responsible individual within the noticing
entity.” (Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(A)(1)
(section 25903).)
Consistent with recent case law addressing this issue, we
conclude the trial court erred in dismissing the actions because
1 CAG brought its enforcement actions against: (1) Walmart
Inc., Wal-Mart.com USA LLC, Landau Uniforms, Inc., and JFC
International, Inc. (the “Walmart case”); (2) The Kroger Co.,
The Kroger Co. of Michigan, and Foods Co. (the “Kroger case”);
(3) Santa Maura Spice and Garlic Co., Inc., Bodega Latina
Corporation, d/b/a El Super, and Food Land Market et al. (the
“Santa Maura case”); (4) Williams Sonoma, Inc., Trader Joe’s
Company, and Trader Joe’s East, Inc. (the “Williams Sonoma
case”); and (5) Philippine Foodtrade Corp., Shun Fat
Supermarket Inc., Trans Family, Inc., d/b/a San Gabriel
Superstore, and Aesquivel International Corp. (the “Philippine
case”) (collectively, Respondents).
3
CAG’s notices substantially complied with section 25903 by
providing the contact information for retained counsel. We
further conclude that the certificates of merit attached to CAG’s
notices complied with the requirement that the person executing
the certificate state that he or she “consulted with one or more
persons with relevant and appropriate experience or expertise
who has reviewed facts, studies, or other data regarding the
alleged exposure to the listed chemical that is the subject of the
action.” (Cal. Code Regs., tit. 11, § 3101, subd. (b) (section 3101).)
We accordingly reverse.
FACTUAL AND PROCEDURAL BACKGROUND
1. CAG’s presuit notices
At issue in these consolidated appeals are five lawsuits
brought by CAG in the public interest for alleged violations of
Proposition 65. Prior to filing suit, CAG served each of
Respondents, along with various prosecuting agencies, with a
notice entitled “SIXTY-DAY NOTICE OF INTENT TO SUE FOR
VIOLATION OF THE SAFE DRINKING WATER AND TOXIC
ENFORCEMENT ACT OF 1986.” The notices asserted that
certain consumer products made, distributed, or sold by
Respondents contained listed chemicals that were known to cause
cancer, developmental toxicity, or reproductive toxicity, and that
Respondents failed to provide a warning to consumers in
violation of Proposition 65.
Each notice provided in substantially similar form that:
“Consumer Advocacy Group, Inc. (‘CAG’), the noticing entity,
located at 9903 Santa Monica Boulevard #225, Beverly Hills,
California 90212, serves this Notice of Violation (‘Notice’) on the
Above Listed Entities (‘Violators’) pursuant to and in compliance
with Proposition 65. Violators may contact CAG concerning this
4
Notice through its designated person [within the entity], its
attorney, Reuben Yeroushalmi, 9100 Wilshire Boulevard, Suite
240W, Beverly Hills, CA 90212, telephone no. (310) 623-1926,
facsimile no. (310) 623-1930.”2 Each notice further identified
CAG as a California-based organization “dedicated to protecting
the [consumer] environment, improving human health, and
supporting environmentally sound [commercial] practices.”
Each notice also attached a certificate of merit signed by CAG’s
attorney, Reuben Yeroushalmi, along with a summary of
Proposition 65.
2. The Walmart case (case No. 22STCV21493)
In 2022, CAG filed suit against Walmart Inc.,
Wal-Mart.com Inc., Landau Uniforms, Inc., and JFC
International, Inc. These defendants moved for judgment on the
pleadings on the ground that CAG’s presuit notice failed to
comply with section 25903 because the notice provided the
contact information of CAG’s outside counsel rather than an
individual “within the noticing entity.”
The trial court granted the motion, ruling that
section 25903 required strict compliance with its notice
provisions, and that CAG’s notice was insufficient because its
outside counsel was not an individual “within the noticing
entity.” On January 19, 2024, the trial court entered judgment
in favor of Walmart Inc., Wal-Mart.com Inc., Landau Uniforms
2 While the majority of the notices provided that CAG may
be contacted “through its designated person, its attorney, Reuben
Yeroushalmi,” some notices stated that CAG may be contacted
“through its designated person within the entity, its attorney,
Reuben Yeroushalmi.” This slight difference in language is not
relevant to our resolution of the issues on appeal.
5
Inc., and JFC International, Inc., and dismissed the action
without leave to amend.
3. The Kroger case (case No. 19STCV25041)
In 2019, CAG filed suit against The Kroger Co., The Kroger
Co. of Michigan, and Foods Co. In a motion for judgment on the
pleadings, these defendants similarly argued that CAG’s presuit
notice was defective because it did not identify a responsible
individual “within the noticing entity” as required by section
25903, and instead identified outside counsel. These defendants
further asserted that the notice was defective because CAG failed
to serve it on the San Diego County District Attorney.
The trial court granted the motion on the ground that
CAG’s notice did not strictly or substantially comply with
section 25903 because its outside counsel did not meet the
definition of an individual “within the noticing entity.” In its
ruling, the court did not address the argument that CAG’s notice
was also defective because it was not served on the San Diego
County District Attorney. On March 28, 2024, the trial court
entered judgment in favor of The Kroger Co., The Kroger Co. of
Michigan, and Foods Co., and dismissed the action without leave
to amend.
4. The Santa Maura case (case No. 19STCV18754)
In 2019, CAG filed suit against Bodega Latina Corporation,
and later added Santa Maura Spice and Garlic Co. as a defendant
in the action. These defendants also moved for judgment on the
pleadings on the grounds that (1) CAG’s notice did not identify a
responsible individual “within the noticing entity” as required by
6
section 25903, and (2) CAG failed to serve the notice on the
San Diego County District Attorney.3
In granting the motion, the trial court ruled that the notice
provisions of section 25903 mandated strict compliance, and that
CAG’s presuit notice did not satisfy this standard because its
attorney was not an individual “within the noticing entity.”
The court did not rule on the argument regarding the lack of
service on the San Diego County District Attorney because the
defendants did not properly include this issue in its notice of
motion. On March 19, 2024, the trial court entered judgment in
favor of Santa Maura Spice and Garlic Co., Inc. and Bodega
Latina Corporation, and dismissed the action without leave to
amend.
5. The Williams Sonoma case (case No. 19STLC08619)
In 2019, CAG filed suit against Williams Sonoma, Inc.,
Trader Joe’s Company, and Trader Joe’s East, Inc. In moving for
judgment on the pleadings, these defendants likewise argued
that CAG’s presuit notice failed to comply with section 25903
because it did not identify the contact information of a
responsible individual “within the noticing entity.”
The trial court granted the motion on the ground that the
notice requirements of section 25903 must be strictly construed,
and that CAG’s notice was noncompliant because its attorney
was not an individual “within the noticing entity.” On August 1,
2024, the trial court entered judgment in favor of Williams
3 In its original motion, Santa Maura Spice and Garlic Co.
further argued that CAG’s notice did not sufficiently allege the
name of each listed chemical involved in the alleged violation, but
later withdrew that argument.
7
Sonoma, Inc., Trader Joe’s Company, and Trader Joe’s East, Inc.,
and dismissed the action without leave to amend.
6. The Philippine case (case No. 23STCV03836)
In 2023, CAG filed suit against Philippine Foodtrade Corp.,
Shun Fat Supermarket Inc., and Trans Family, Inc., and later
amended its complaint to add Aesquivel International Corp. as a
defendant in the action. These defendants then brought a
demurrer to the complaint on the basis that CAG’s presuit notice
was defective because it did not provide the contact information
of a responsible individual “within the noticing entity” as
required by section 25903. The defendants also argued that the
certificate of merit attached to CAG’s notice was defective
because it stated that its attorney consulted with “at least one
person” with the relevant experience or expertise (rather than
with “one or more persons”), who reviewed facts, studies, or other
data regarding “the exposure” to the listed chemical (rather than
“the alleged exposure”).
The trial court sustained the demurrer without leave to
amend, ruling that CAG failed to provide the defendants with
legally sufficient presuit notices and certificates of merit, which
were “mandatory prerequisites to filing a Proposition 65 action.”
On June 27, 2024, the trial court entered an order dismissing
CAG’s action against Philippine Foodtrade Corp., Shun Fat
Supermarket Inc., Trans Family, Inc., and Aesquivel
International Corp.
7. CAG’s appeals
CAG filed a timely notice of appeal in each of its actions
against Respondents. This court consolidated the appeals for all
purposes.
8
DISCUSSION
1. Overview of Proposition 65
Proposition 65 prohibits businesses from exposing
consumers to chemicals known by the state to cause cancer or
reproductive toxicity without first providing a clear and
reasonable warning. (Health & Saf. Code, § 25249.6.) Violators
may be enjoined by the court and liable for civil penalties of up to
$2,500 per day for each violation. (Health & Saf. Code, § 25249.7,
subds. (a), (b)(1).) Actions to enforce Proposition 65 may be
brought by the state Attorney General, by a district attorney, or
by a city attorney of a city with a population in excess of 750,000.
(Id., subd. (c).) A private citizen may bring an enforcement action
in the public interest provided that: (1) the citizen first gives
notice to the alleged violator, the Attorney General, and the
district attorneys and city attorneys in the jurisdiction where the
alleged violation occurred; and (2) at least 60 days have passed
without a prosecuting agency commencing an action. (Id.,
subd. (d)(1)–(2).)
For consumer product exposures in violation of Health and
Safety Code section 25249.6, the notice “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. The certificate of merit shall state that the person
executing the certificate has consulted with one or more persons
with relevant and appropriate experience or expertise who has
reviewed facts, studies, or other data regarding the exposure to
the listed chemical that is the subject of the action, and that,
based on that information, the person executing the certificate
believes there is a reasonable and meritorious case for the private
action.” (Health & Saf. Code, § 25249.7, subd. (d)(1).)
9
The Governor designated the Office of Environmental
Health Hazard Assessment (OEHHA) as the lead agency to
implement Proposition 65. (Cal. Code Regs., tit. 27, § 25102,
subd. (o).) “Because the statute provides relatively little
definition of the notice requirements,” OEHHA adopted
regulations to specify the requirements for the 60-day presuit
notices. (OEHHA, Final Statement of Reasons, Adopt Section
12903, Notices of Violation, Tit. 22, Div. 2, Cal. Code Regs. (1996)
pp. 2–3 (Final Statement of Reasons on Notices).) These
regulations are set forth in section 25903.
Section 25903, subdivision (a), provides: “For purposes of
Section 25249.7(d) of the Act, ‘notice of the violation which is the
subject of the action’ (hereinafter ‘notice’) shall mean a notice
meeting all requirements of this section. No person shall
commence an action to enforce the provisions of the Act ‘in the
public interest’ pursuant to Section 25249.7(d) of the Act except
in compliance with all requirements of this section.”
Section 25903, subdivision (b), describes the required
contents of the notice, stating: “A notice shall provide adequate
information from which to allow the recipient to assess the
nature of the alleged violation, as set forth in this paragraph.
The provisions of this paragraph shall not be interpreted to
require more than reasonably clear information, expressed in
terms of common usage and understanding, on each of the
indicated topics.” (Id., subd. (b)(2).) Subdivision (b) further
provides that the notice “shall identify: [¶] (1) the name, address,
and telephone number of the noticing individual or a responsible
individual within the noticing entity and the name of the entity;
[¶] (2) the name of the alleged violator or violators; [¶] (3) the
approximate time period during which the violation is alleged
10
to have occurred; and [¶] (4) the name of each listed chemical
involved in the alleged violation.” (Id., subd. (b)(2)(A).)
2. Standard of review
An appellate court reviews de novo a ruling sustaining a
demurrer or granting a motion for judgment on the pleadings.
(Sproul v. Vallee (2025) 116 Cal.App.5th 285, 292–293.) “ ‘ “[W]e
treat the properly pleaded allegations of [the] complaint as true,
and also consider those matters subject to judicial notice.” ’ ” (Id.
at p. 293.) The determination of whether a Proposition 65 presuit
notice complies with statutory requirements is also subject to
de novo review. (Environmental Health Advocates, Inc. v. Pancho
Villa’s, Inc. (2026) 118 Cal.App.5th 778, 793–794 (Pancho
Villa’s).)
3. Requests for judicial notice
Both CAG and Respondents request that this court take
judicial notice of certain materials. CAG seeks judicial notice of:
(1) 16 superior court decisions construing section 25903 in
unrelated cases; (2) two final statements of reasons issued by
OEHHA regarding Proposition 65; (3) a Senate Bill Analysis of
Senate Bill No. 471, which amended Proposition 65 in 2001; (4) a
brief filed by Wal-Mart Stores, Inc. in an unrelated appeal in
2004; and (5) two letters from the Attorney General in 1995 and
1997, respectively, to private individuals in unrelated matters.
In addition, CAG and Respondents each seek judicial notice of a
presuit notice that CAG served on an unrelated business that is
not a party in any of the current appeals. We grant CAG’s
request for judicial notice of the final statements of reasons
issued by OEHHA regarding Proposition 65. (Evid. Code, §§ 452,
subds. (b), (c), 459, subd. (a).) We decline to take judicial notice of
the remaining materials because they are not relevant to our
11
resolution of these appeals. (Pancho Villa’s, supra,
118 Cal.App.5th at p. 790, fn. 4.)
4. CAG’s presuit notices complied with section 25903
On appeal, CAG argues that Proposition 65 does not
require strict compliance with its notice provisions, and that even
if it does, CAG’s presuit notices to Respondents strictly complied
with section 25903 by providing the contact information for its
retained counsel. Respondents assert that strict compliance with
section 25903 is required, and that CAG’s presuit notices neither
strictly nor substantially complied with the requirement that the
notice identify “a responsible individual within the noticing
entity.” (§ 25903, subd. (b)(2)(A)(1).)
At the time the parties completed their initial briefing on
appeal, no appellate court had decided whether a presuit notice
satisfies section 25903, subdivision (b)(2)(A)(1), by providing the
contact information for the noticing entity’s retained counsel
rather than an individual “within the noticing entity.” However,
since the parties filed their briefs, three appellate courts have
considered this issue, and in each case, concluded that (1) section
25903 requires substantial compliance with its notice provisions,
and (2) a presuit notice substantially complies with section 25903
by providing the contact information for the noticing entity’s
retained attorney. (Pancho Villa’s, supra, 118 Cal.App.5th at
p. 788; The Chemical Toxin Working Group, Inc. v. The Kroger
Co. (2026) 120 Cal.App.5th 276, 282 (Kroger); The Chemical
Toxin Working Group Inc. v. Best Naturals, Inc. (2026)
120 Cal.App.5th 818, 824–825 (Best Naturals).) We find the
reasoning in these cases persuasive and reach the same
conclusion here.
12
The first case to address the issue was Pancho Villa’s.
The trial court ruled that the plaintiff’s Proposition 65 presuit
notices were defective because they provided the contact
information for the plaintiff’s “outside counsel” instead of a
“ ‘responsible individual within’ ” the noticing entity. (Pancho
Villa’s, supra, 118 Cal.App.5th at p. 793.) In reversing that
ruling, the Fourth District concluded that substantial compliance
is the governing test for Proposition 65’s notice requirements.
(Id. at pp. 795–798.) The court reasoned that “three core
functions” of the presuit notice, as set forth by the OEHHA, were
to “(1) enable prosecuting agencies to ‘ “intelligently” ’ assess
whether to investigate and to file an enforcement action on behalf
of the public; (2) allow violators ‘an opportunity to cure the
violation’ and ‘at least prevent the accrual of any further liability
for penalties’; and (3) to ‘defin[e] the scope of the private person’s
right to sue under the statute.’ ” (Id. at p. 795.) Because the
failure to provide the contact information for “ ‘a responsible
individual within the noticing entity’ ” does not defeat any of
these objectives, the court determined that section 25903 is to be
given directory, rather than mandatory, effect. (Ibid.)
The court in Pancho Villa’s also observed that the
OEHHA’s only comment on the requirement that the notice
include the noticing entity’s contact information was that the
“ ‘[i]dentification 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.’ ” (Pancho Villa’s, supra,
118 Cal.App.5th at p. 797.) The court reasoned that direct
contact with the noticing entity’s principal “is not essential to
promoting this purpose,” and “[i]ndeed, there is no ‘detailed and
13
specific’ mandate which requires or explains why contact must
occur directly” between the noticing and noticed parties. (Ibid.)
The court in Pancho Villa’s further concluded that the
plaintiff’s presuit notice substantially complied with section
25903 by providing “the name and contact information for its
outside counsel, rather than somebody ‘within’ the [plaintiff’s]
organization.” (Pancho Villa’s, supra, 118 Cal.App.5th at
pp. 798–799.) As the court explained: “[P]roviding attorney
contact information meets the OEHHA’s stated objective of
‘giv[ing] 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.’ By
identifying outside counsel, [the plaintiff] provided ‘an
opportunity’ for [the defendant] to contact [the plaintiff] through
its counsel. The ability for [the plaintiff] to exchange information
with [the defendant] turns on whether [the] designated contact
person has sufficient knowledge of the alleged violation. His or
her employment position does not affect whether that core
objective is obtained.” (Id. at p. 799.)
In Kroger, our colleagues in Division Three similarly held
that a Proposition 65 presuit notice that provided the contact
information for the plaintiff’s outside counsel, rather than an
individual within the plaintiff’s organization, satisfied the notice
requirements of section 25903. (Kroger, supra, 120 Cal.App.5th
at p. 282.) Like the court in Pancho Villa’s, the Kroger court
concluded that the doctrine of substantial compliance applies to
section 25903, reasoning in relevant part: “[S]ection 25903,
subdivision (b)(2), requires ‘adequate information from which to
allow the recipient to assess the nature of the alleged violation’
and states ‘[t]he provisions of this paragraph shall not be
14
interpreted to require more than reasonably clear information,
expressed in terms of common usage and understanding, on each
of the indicated topics.’ … OEHHA also cautioned that ‘the
proposed regulation is not intended to require that highly
technical information be provided, to require disclosure of the
evidence by which a violation will be proven, or to otherwise turn
the notice requirement into a trap for the unwary.’ [Citation.]
This language supports the conclusion that noncompliance …
should be judged by whether the notice provides adequate
information for prosecutors and the alleged violator to assess and
address the alleged violation.” (Kroger, at p. 293.) The Kroger
court further concluded that the plaintiff’s notice substantially
complied with the objectives of section 25903 by “ ‘ “giv[ing] 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.” ’ ” (Kroger, at p. 297.)
Most recently, in Best Naturals, the First District adopted
the reasoning of Pancho Villa’s to hold that a Proposition 65
presuit notice substantially complied with the requirements of
section 25903 by identifying the plaintiff’s outside counsel as the
entity to be contacted. (Best Naturals, supra, 120 Cal.App.5th at
pp. 824–825.) In reaching its holding, the Best Naturals court
also observed that the plaintiff’s notice “evoked no response” from
the prosecuting agencies that received it, and that “[f]rom this
silence can be deduced that not one of the recipients deemed the
notice inadequate or misleading.” (Id. at p. 825.)
We find the reasoning in Pancho Villa’s, Kroger, and Best
Naturals persuasive, and likewise conclude that the doctrine of
substantial compliance applies to the notice requirements of
section 25903. We further conclude that CAG’s presuit notices to
15
Respondents substantially complied with section 25903 by
providing the name, address, and telephone number of its
retained counsel. By providing the contact information for CAG’s
retained counsel, the notices met section 25903’s objective of
“giv[ing] 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.” (Final
Statement of Reasons on Notices, supra, at p. 8; see Pancho
Villa’s, supra, 118 Cal.App.5th at p. 799; Kroger, supra,
120 Cal.App.5th at p. 297.) Indeed, CAG’s notices specifically
stated that the alleged violators “may contact CAG concerning
this Notice through its designated person, its attorney, Reuben
Yeroushalmi.”
In a supplemental brief filed after Pancho Villa’s was
issued, Respondents argue that Pancho Villa’s conflicts with the
strict compliance tests articulated in Prang v. Los Angeles County
Assessment Appeals Bd. No. 2 (2020) 54 Cal.App.5th 1 (Prang).
In Prang, Division Two of this district held that it could be
inferred the Legislature intended a statute’s requirements to be
followed precisely where “(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.’ ” (Id. at p. 19.) Respondents assert that strict
compliance is required if either of the Prang tests is satisfied, and
that the first test is satisfied because section 25903 contains a
“detailed and specific mandate.” However, this argument was
recently rejected in Kroger. As the Kroger court explained,
“although language in Prang suggests that either of its tests is
independently sufficient to establish that strict compliance is
required, the court only reached its conclusion in that case after
16
considering both. [Citation.] Indeed, the Prang court’s analysis
of whether strict compliance was necessary to serve the intent
behind the statute was far more in-depth than its analysis of
whether there was a detailed and specific mandate.” (Kroger,
supra, 120 Cal.App.5th at p. 296.) The Kroger court instead
“agree[d] with the Pancho Villa’s court’s conclusion that strict
compliance with subdivision (b)(2)(A)(1) is not necessary to
effectuate the intent of section 25903.” (Ibid.) We agree with
both the Kroger court and the Pancho Villa’s court that
substantial compliance is the governing test for the notice
requirements of section 25903.
In their supplemental brief, Respondents also contend that,
unlike the plaintiff in Pancho Villa’s, CAG intentionally chose not
to comply with section 25903 in providing the contact information
for their counsel so that CAG would not be contacted directly by
the alleged violators. However, there is no indication that any of
the plaintiffs in the above-cited cases unintentionally listed their
attorney as the person to be contacted in their presuit notices.
Rather, it appears the plaintiffs chose to provide their attorneys’
contact information so that any communications by the noticed
parties or their counsel would be directed at the plaintiffs’
counsel. As the Pancho Villa’s court recognized, “counsel may, in
fact, be in the best position to communicate about the alleged
violation” because the certificate of merit must be signed by the
noticing party’s attorney if the noticing party is represented.
(Pancho Villa’s, supra, 118 Cal.App.5th at p. 799.) A retained
attorney who consulted with experts regarding the details of the
exposure and evaluated the merits of an enforcement action is
“well positioned to communicate with alleged violators and public
enforcers.” (Ibid.) Moreover, “irrespective of [the noticing
17
party’s] motivation in commencing the action, ‘ “the public always
has a significant interest in seeing that legal strictures are
properly enforced and thus, in a real sense, the public always
derives a ‘benefit’ when illegal private or public conduct is
rectified.” ’ ” (Id. at p. 800.) Additionally, it is not clear it would
be appropriate to address questions of CAG’s intent in reviewing
the pleadings-based motions at issue in these appeals.
We accordingly conclude the trial court erred in dismissing
CAG’s enforcement actions against Respondents on the ground
that CAG’s presuit notices failed to comply with section 25903 by
identifying a responsible individual within the noticing entity.
5. CAG’s certificates of merit in the Philippine case
complied with section 3101
In their demurrer to CAG’s complaint, the defendants in
the Philippine case also argued that CAG’s notices were defective
because the attached certificates of merit did not comply with the
requirements of section 3101. In sustaining the demurrer, the
trial court appeared to agree with the defendants’ argument,
ruling that “CAG failed to provide legally sufficient pre-suit
[notices of violation] and certificates of merit, mandatory
prerequisites to filing a Proposition 65 action” (italics added).
We conclude the trial court erred in sustaining the demurrer on
this additional ground.
Section 3101 describes the required contents of a certificate
of merit that must be attached to any presuit notice alleging a
violation of Health and Safety Code section 25249.6. It provides
that the certificate of merit “shall contain all of the following
statements, and appear in the following form,” and sets forth five
statements that must appear in the certificate, including: “I have
consulted with one or more persons with relevant and
18
appropriate experience or expertise who has reviewed facts,
studies, or other data regarding the alleged exposure to the listed
chemical that is the subject of the action.” (§ 3101, subd. (b).)
CAG’s notices to the defendants in the Philippine case
attached certificates of merit executed by its attorney, Reuben
Yeroushalmi. In addition to the other required statements, each
certificate of merit included the following sentence: “I have
consulted with at least one person with relevant and appropriate
experience or expertise who has reviewed facts, studies, or other
data regarding the exposure to the listed chemical that is the
subject of the action.” Respondents contend that this sentence
does not strictly comply with section 3101 because it states that
(1) the attorney consulted with “at least one person” rather than
with “one or more persons,” and (2) the consulting expert
reviewed facts, studies or other data regarding “the exposure”
rather than “the alleged exposure.” We need not decide, however,
whether section 3101 requires strict compliance because, even
assuming that it does, CAG’s certificates of merit satisfied this
standard.
First, the phrase “at least one person,” as used in CAG’s
certificates of merit, has the same meaning as the phrase “one or
more persons,” as used in section 3101. Both phrases signify that
the attorney executing the certificate met with one person, and
possibly with more than one person, who has the relevant and
appropriate experience or expertise. Second, the omission of the
term “alleged” before the term “exposure” does not constitute a
deviation from section 3101’s language or form requirements.
Respondents claim that the failure to include the word “alleged”
materially changes the meaning of the certification because
CAG’s attorney is stating only that the consulting expert
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“confirmed the chemicals at issue are toxic,” and not that “an
exposure to the chemicals is occurring at all from use of the
products in question.” We disagree. The attorney’s statement
certifies that the consulting expert “reviewed facts, studies, or
other data regarding the exposure to the listed chemical that is
the subject of the action” (italics added). This language is
consistent with the requirements of section 3101. It is also
consistent with Health and Safety Code section 25249.7, which
likewise does not include the term “alleged” before the term
“exposure.” Rather, the statute provides that the certificate of
merit “shall state that the person executing the certificate has
consulted with one or more persons with relevant and
appropriate experience or expertise who has reviewed facts,
studies, or other data regarding the exposure to the listed
chemical that is the subject of the action.” (Health & Saf. Code,
§ 25249.7, subd. (d)(1), italics added.)
We therefore conclude the trial court erred in sustaining
the demurrer in the Philippine case on the ground that CAG’s
certificates of merit were legally insufficient.
6. CAG’s lack of service on the San Diego County
District Attorney
In their motions for judgment on the pleadings, the
defendants in the Kroger case and the Santa Maura case also
asserted that CAG’s presuit notices were defective because CAG
failed to serve the notices on the San Diego County District
Attorney despite alleging that violations of Proposition 65
occurred in each county in California. The trial court did not
address this argument in granting the motions, and instead
based its ruling solely on CAG’s purported failure to comply with
section 25903. On appeal, CAG concedes that the omission of the
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San Diego County District Attorney from its service list means
that it cannot recover civil penalties for violations that occurred
within San Diego County, but contends that such omission does
not render the notices void in their entirety. We agree.
In Consumer Advocacy Group, Inc. v. Kintetsu Enterprises
of America (2007) 150 Cal.App.4th 953, CAG mistakenly omitted
the San Jose City Attorney from its service list for presuit notices
alleging violations of Proposition 65. (Id. at p. 978.) The court of
appeal concluded that the omission did not preclude CAG from
pursuing an enforcement action for violations outside of the city
of San Jose, reasoning: “CAG was required to give notice to ‘the
Attorney General and the district attorney and any city attorney
in whose jurisdiction the violation is alleged to occur … .’ CAG’s
failure to serve the San Jose City Attorney therefore affects
entities in that jurisdiction where the violation is alleged to have
occurred and the public prosecutor was not properly noticed. It
does not affect entities in other cities where the public prosecutor
was properly noticed.” (Id. at pp. 978–979.) In this case, CAG’s
failure to serve the San Diego County District Attorney affects
entities within that jurisdiction, but does not make the entirety of
CAG’s enforcement action subject to dismissal.
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DISPOSITION
The judgments of dismissal are reversed. The matter is
remanded to the trial court with directions to vacate the orders
granting the motions for judgment on the pleadings in case
Nos. 22STCV21493, 19STCV25041, 19STCV18754, and
19STLC08619, and the order sustaining the demurrer in case
No. 23STCV03836, and to enter new orders denying the motions
for judgment on the pleadings and overruling the demurrer.
CAG shall recover its costs on appeal.
VIRAMONTES, J.
WE CONCUR:
STRATTON, P. J.
SCHERB, J.
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