Consumer Defense Group v. Rental Housing Industry Members

Opinion

SILLS, P. J.—

I. INTRODUCTION

A prerequisite for the private enforcement by way of litigation of the warning provisions of Proposition 65 is a 60-day notice from the would-be private enforcer to the alleged violator and to relevant prosecutorial authorities—particularly the Attorney General’s office—sufficient to give the alleged violator and the appropriate governmental authorities opportunity to both undertake a

meaningful

investigation and instigate remedial action

prior

to the filing of litigation.

(Yeroushalmi v. Miramar Sheraton

(2001) 88 Cal.App.4th 738, 740 [106 Cal.Rptr.2d 332] [“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.”].)

The present appeal centers on two sets of notices of violation of Proposition 65, each served on literally hundreds of apartment owners and managers.

The first notice was literally predicated on only two things: One, each apartment had . . . parking facilities! Thus the apartment allegedly “exposed” tenants and visitors to carcinogens in auto exhaust without giving them a Proposition 65 warning.

Two, each apartment did not prohibit tobacco smoking

everywhere

on the premises. Hence somewhere on the property the apartment allegedly “exposed” its tenants and visitors to secondhand tobacco smoke, again without posting a Proposition 65 warning.

[1189]

The second notice was much longer. Like the first notice it included the allegation that someone, somewhere, might not be prohibited from smoking on the property. And like the first it included allegations that one might actually drive a car onto a parking lot on the property. But the second notice also alleged a host of additional things about each apartment that were . . .