Yeroushalmi v. Miramar Sheraton

• Decision Date: 25 April 2001
• Docket Number: No. B132719.,No. B134924.,No. B132723.,B132719.,B132723.,B134924.
• Citation: 88 Cal.App.4th 738,106 Cal.Rptr.2d 332
• Court: California Court of Appeals Court of Appeals
• Parties: Reuben YEROUSHALMI, Plaintiff and Appellant, v. MIRAMAR SHERATON, et al., Defendants and Respondents. Reuben Yeroushalmi, Plaintiff and Appellant, v. The Westin Bonaventure, et al. Defendants and Respondents. Consumer Cause, Inc., Plaintiff and Appellant, v. Arco Oil & Gas Company, et al. Defendants and Respondents.

106 Cal.Rptr.2d 332

88 Cal.App.4th 738

Reuben YEROUSHALMI, Plaintiff and Appellant, v. MIRAMAR SHERATON, et al., Defendants and Respondents.

Reuben Yeroushalmi, Plaintiff and Appellant, v. The Westin Bonaventure, et al. Defendants and Respondents.

Consumer Cause, Inc., Plaintiff and Appellant, v. Arco Oil & Gas Company, et al. Defendants and Respondents.

No. B132719.

No. B132723.

No. B134924.

Court of Appeal, Second District, Division 4.

April 25, 2001.

Mehrban & Ghalchi, Kamran Ghalchi and Morse Mehrban, Los Angeles, for Plaintiffs and Appellants.

Weston, Benshoof, Rochefort, Rubalcava & MacCuish, Michael J. Stiles and Kurt Weissmuller, Los Angeles, for Defendants and Respondents Arco Oil & Gas Company, et al.

Stanzler, Funderburk & Castellon, Jordan S. Stanzler, Ruben A. Castellon, San Francisco, Lisa J. Morelli, Ross H. Hirsch and William W. Funderburk, Jr., for Defendants and Respondents Miramar Sheraton, et al. and the Westin Bonaventure et al.

HASTINGS, J.

Proposition 65, the Safe Drinking Water and Toxic Enforcement Act of 1986 (Health & Saf.Code, §§ 25249.5 et seq.), provides for citizen enforcement if applicable government agencies fail to undertake enforcement after service of an appropriate notice of violation. Here, appellants sent notices relating to alleged violations by various commercial establishments throughout the state and then filed suit after the applicable governmental agencies failed to take steps to enforce the alleged violations. We conclude that the notices sent were insufficient because they failed to state sufficient specific facts to enable the alleged violators and the appropriate governmental agencies to undertake a meaningful investigation and remedy the alleged violations prior to citizen intervention. Thus, the trial court did not err in sustaining demurrers without leave to amend and dismissing the actions.

BACKGROUND

We have consolidated three appeals: B132723, Yeroushalmi v. The Westin Bonaventure, et al, Los Angeles Superior Court case No. BC200353 ("Westin"); B134924, Consumer Cause, Inc., v. Arco Oil & Gas Company, et al, Superior Court case No. BC196094 ("Arco"); and B132719, Yeroushalmi v. Miramar Sheraton, et al, Superior Court case No. BC200421 ("Miramar"). They are appeals from judgments in three of twenty or so related actions, all of which involve the same issue, the adequacy of the 60-day notice required by Health and Safety Code section 25249.7, subdivision (d), to be given prior to filing an action under Proposition 65.¹

In Westin, the trial court sustained respondents' demurrer without leave to amend, and dismissed the action on April 13, 1999. A notice of appeal from that order was filed on June 3, 1999. In Arco, the trial court granted a motion for judgment on the pleadings without leave to amend, as well as a motion for summary judgment, and dismissed the action on August 3, 1999. A notice of appeal from the order of dismissal was filed on August 27, 1999.² In Miramar, a demurrer was sustained without leave to amend, and the action was dismissed on April 27, 1999. A notice of appeal from that order was filed on June 3, 1999.

Appellants attached to each complaint a copy of the 60-day notice sent to each of the respondents. The Westin and Miramar complaints reproduced in the record on appeal include those exhibits. However, the only complaint we have found in the Arco matter is an exhibit to respondents' motion for summary judgment. It is a first amended complaint, filed September 30, 1998, and recites that 60-day notices are attached as exhibits. The exhibits are not attached. However, the motion for summary judgment included a copy of the notice sent to Arco Oil & Gas Company and a few of the defendants in related matters.

The Westin Notice

The Westin 60-day notice is dated August 19, 1998, and is entitled, "60-day Notice for Failure to Warn Public About Chemicals listed Under Health &amp Safety Code Section 2524.9.6." Following the name and address of the appellants, the notice states, in relevant part: "This letter constitutes notification that [the Westin respondents] have violated Proposition 65, the Safe Drinking Water and Toxic Enforcement Act (commencing with Health & Safety Code Section 25249.5)."

Under the title, "Consumer Product Exposures," the notice continues: "While in the course of doing business, since 08/19/94 and to this date, the violators have been and are knowingly and intentionally exposing consumers and the public to tobacco smoke and cigars which contain, and the consumption of which exposes said persons to, chemicals designated by the State of California to cause cancer and reproductive toxicity without first giving clear and reasonable warning of that fact to such persons [citation]." (Boldface and italics in original.)

Under the title, "Occupational Exposures," the notice states: "While in the course of doing business, since 08/19/94 and to this date, the violators have been and are knowingly and intentionally exposing employees of the violators, in Los Angeles, Costa Mesa, Long Beach, Millbrae, Santa Clara, San Francisco, Santa Barbara California, to tobacco smoke and cigars which contains [sic] chemicals designated by the State of California to cause cancer and reproductive toxicity without first giving clear and reasonable warning of that fact to such persons (Health & Safety Code Section 25249.6). Employees include and are not limited to bartenders, cashiers, waiters, waitresses, cooks, security personnel, maintenance workers and entertainment providers." (Boldface and italics in original.)

Under "Environmental Exposures," the notice states: "While in the course of doing business, since 8/19/94 and to this date, the violators have been and are knowingly and intentionally exposing the public to certain chemicals designated by the State of California to cause cancer and reproductive toxicity without first giving clear and reasonable warning of that fact to the exposed persons (Health & Safety Code Section 25249.6). The source of exposure is tobacco smoke and cigars. These exposures occurred on and beyond property owned and controlled by the violators." (Boldface and italics in original.)

The notice concludes: "The route of exposure to these chemicals has been inhalation, ingestion, and dermal contact. The violators exposed and are exposing the above-referenced persons to the following chemicals: [list]." The list consists of tobacco smoke and 49 chemicals, including benzene, carbon monoxide, DDT, nicotine, styrene, toluene, urethane, vinyl chloride, arsenic, cadmium, chromium, lead, and nickel.

Attached to the notice is a summary of Proposition 65 requirements, and a certificate of service, showing service on the California Attorney General, the City Attorneys of Los Angeles and San Francisco, the District Attorneys of Los Angeles County, Orange County, San Diego County, San Francisco County, and Santa Clara County; as well as the Westin respondents, each at the same address in Seattle, Washington.

The Miramar Notice

The Miramar notice is identical to the Westin notice, except the date of violations, the names of the violators, and the locations of the violations. Tobacco smoke and the same 49 chemicals are listed as those to which persons were exposed. The date of violation is stated to have been "08/18/94 and to this date." (Boldface and italics in original.) The notice is dated August 18, 1998. Like the Westin notice, no location is given for the "Consumer Product Exposures," and the "Environmental Exposures" are said to have "occurred on and beyond property owned and controlled by the violators." The locations of the occupational exposures are stated to have been Los Angeles, Newport Beach, Santa Barbara, Palo Alto, San Diego, Rosemead, Anaheim, Pomona, San Francisco, Concord, City of Industry, San Jose, Milpitas, Universal City, Santa Monica, Sacramento, Ranch Cordova, San Pedro, La Jolla, Ventura, Bakersfield, Emeryville, Fullerton, Sunnyvale, San Jose, Fresno, and Pleasanton.

Also attached to the Miramar notice is a summary of Proposition 65 requirements, and a certificate of service, showing service on the California Attorney General, the City Attorneys of Los Angeles and San Francisco, the District Attorneys of Alameda County, Contra Costa County, Fresno County, Kern County, Los Angeles County, Orange County, Riverside County, Sacramento County, San Diego County, San Francisco County, San Luis Obispo County, San Mateo County, Santa Clara County, and Ventura County; as well as the Miramar respondents, each at the same address in Boston, Massachusetts.

The Arco Notice

The Arco notice is a much abbreviated version of the Westin and Miramar notices. It contains no "Occupational Exposures" section, or "Environmental Exposures" section, only a "Consumer Product Exposures" section, which states: "While in the course of doing business, since 01/18/91 and to this date, the violators have been and are knowingly and intentionally exposing consumers and the public to cigars which contain, and the consumption of which exposes said persons to, chemicals designated by the State of California to cause cancer and reproductive toxicity without first giving clear and reasonable warning of that fact to such persons...." The notice is dated June 24, 1998. The same 49 chemicals and tobacco are listed as having been exposed to consumers and the public. No location is given for any violation. A summary of Proposition 65 requirements is attached, as well as a certificate of service, showing service on the California Attorney General, the City Attorney of Los Angeles, the Los Angeles County District Attorney, Arco Oil and Gas Company in Wilmington, Delaware, and Arco AM/PM in Los Angeles.

DISCUSSION

The adequacy of appellants' 60-day notices is the only issue on appeal, and one of first impression. Since it involves solely an issue of statutory interpretation, our review in each case is de novo. (See California...