As a California appellate court once stated, and many businesses find out to their dismay, Proposition 65’s enforcement procedures make “the instigation of Proposition 65 litigation easy—and almost absurdly easy at the pleading stage and pretrial stages.” Consumer Defense Group v. Rental Housing Industry Members, 137 Cal. App. 4th 1185, 1215 (2006). A recent ruling from a federal court has found that despite Prop 65’s low bar, plaintiffs in a consumer class action lawsuit cannot bootstrap an alleged Proposition 65 violation into the basis for California consumer protection claims, at least not without first complying with Prop 65’s pre-suit notice and certificate of merit requirements.
In Gutierrez v. Johnson & Johnson Consumer, Inc., et al., No. 19-cv-1345 (S.D. Cal.), plaintiffs asserted that the defendants’ failure to warn about exposure to asbestos in talc violated Proposition 65, and therefore established violations of California’s Unfair Competition Law (UCL), Consumer Legal Remedies Act (CLRA), and False Advertising Law (FAL). The plaintiffs sought injunctive relief and restitution on behalf of a California class of purchasers. In an April 27, 2020 ruling, Judge Dana Sabraw dismissed this putative consumer class action.
But the plaintiffs failed to provide the required “60-day Notice,” meaning they could not directly bring a Proposition 65 enforcement action. The court held that plaintiffs’ attempt to use Proposition 65 as a basis for consumer protection claims was impermissible given this failure. It rejected the plaintiffs’ argument that no statutory notice was necessary because the defendants were on notice of a Proposition 65 issue from prior litigation. The court found that a party must provide its own notice of alleged violation in order to pursue a claim. The court also rejected plaintiff’s assertion that no notice was required because they were not seeking remedies under Proposition 65, relying on case law holding that an attempt to plead a violation of the UCL and other California consumer protection statutes is improper if the underlying statute bars enforcement. Because their failure to warn claim was premised solely on an alleged Proposition 65 duty, and plaintiffs did not comply with the pre-suit notice requirement, “any claim under the CLRA, FAL or UCL predicated on a duty to disclose certain carcinogenic substances is dismissed as an attempt to plead around Proposition 65.”
The court did grant the plaintiffs leave to amend their consumer protection claims, so long as they stated such claims on theories of liability other than Proposition 65.
While the court did not cite to it, there is in fact published California appellate authority directly on point. Fifteen years ago, the California Court of Appeal ruled that where the plaintiff failed to comply with Proposition 65’s notice requirement, it could not proceed with a Proposition 65 claim under the UCL. In Re the Vaccine Cases, 134 Cal. App. 4th 438, 459 (2005). And the California Supreme Court also rejected tort plaintiffs’ attempts to impose liability under Proposition 65, finding that they “do not qualify as citizen enforcers.” Hartwell v. Superior Court, 27 Cal. 4th 256, 278, n. 10 (2002). Hartwell raises the question whether it is ever permissible to base a consumer protection or other claim (e.g., negligence per se) on Proposition 65 violations, due to its holding that those who seek damages “do not qualify” as enforcers.
At least for the time being, courts are not making it “absurdly easy” to bring Proposition 65 claims dressed up as consumer protection class actions.