Chemical Toxin Working Grp. v. Kroger Co.

Filed 4/29/26
                CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                         DIVISION THREE

 THE CHEMICAL TOXIN                       B341662
 WORKING GROUP, INC.,
                                          (Los Angeles County
         Plaintiff and Appellant,         Super. Ct. No. 23STCV16358)

         v.

 THE KROGER COMPANY et al.,

         Defendants and Respondents.



      APPEAL from a judgment of the Superior Court of
Los Angeles County, Barbara Meiers, Judge. Reversed and
remanded.
      Poulsen Law, Aida Poulsen, Peter T. Sato; Keiter Appellate
Law and Mitchell Keiter for Plaintiff and Appellant.
      Nixon Peabody, Gregory P. O’Hara and Lauren M. Michals
for Defendants and Respondents.
                 ‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗‗
       This appeal concerns the adequacy of the pre-suit notice
plaintiff The Chemical Toxin Working Group, Inc., doing business
as Healthy Living Foundation, Inc. (HLF), provided to defendants
The Kroger Company, Ralphs Grocery Company, Hughes
Markets, Inc., and Maplebear Inc., pursuant to the Safe Drinking
Water and Toxic Enforcement Act of 1986 (Health & Saf. Code,
§ 25249.5 et seq.), adopted by California voters in 1986 as
Proposition 65 (Proposition 65, or the Act).
       Proposition 65 requires businesses to provide clear and
reasonable warnings before exposing individuals to chemicals
known to the state to cause cancer or reproductive toxicity.
(Health & Saf. Code, § 25249.6.) Private individuals acting in the
public interest may bring enforcement actions against alleged
violators of Proposition 65 where: 1) the private individual has
provided notice of the violation to the Attorney General, district
and city attorneys, and the alleged violators; and 2) 60 days have
passed without a prosecuting agency commencing an enforcement
action. (Id., § 25249.7, subd. (d)(1)–(2).)
       Regulations implementing the 60-day notice requirement
provide 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 to
have occurred; and [¶] (4) the name of each listed chemical
involved in the alleged violation.” (Cal. Code Regs., tit. 27,
§ 25903, subd. (b)(2)(A) (section 25903).)
       The trial court granted defendants’ motion for judgment on
the pleadings on the ground that HLF’s 60-day notice failed to
provide the contact information of “a responsible individual




                                2
within the noticing entity.” (§ 25903, subd. (b)(2)(A)(1), italics
added.) Rather, HLF’s 60-day notice provided contact
information for its outside counsel.
        The Fourth District Court of Appeal recently considered
whether a Proposition 65 action was invalidated by the plaintiff’s
failure to strictly comply with section 25903’s requirement that
contact information be provided for a responsible person within
the noticing entity. (Environmental Health Advocates, Inc. v.
Pancho Villa’s, Inc. (2026) 118 Cal.App.5th 778 (Pancho Villa’s).)
The Pancho Villa’s court determined that section 25903 is
directory, not mandatory, and the plaintiff’s 60-day notice, which
provided the contact information for plaintiff’s retained counsel,
substantially complied with section 25903. (Pancho Villa’s, at
p. 798.)
        We find Pancho Villa’s persuasive and conclude the 60-day
notice in this case also substantially complied with section 25903.
We therefore reverse the judgment and remand for further
proceedings.
        FACTUAL AND PROCEDURAL BACKGROUND
Proposition 65
        Proposition 65 requires the state to develop and maintain a
list of chemicals “known to the state to cause cancer or
reproductive toxicity.” (Health & Saf. Code, § 25249.8, subd. (a).)
It also states that “[n]o person in the course of doing business
shall knowingly and intentionally expose any individual to a
chemical known to the state to cause cancer or reproductive
toxicity without first giving clear and reasonable warning to such
individual . . . . ,” except as otherwise provided by the statute.
(Id., § 25249.6.) Proposition 65 is “a remedial statute intended to
protect the public.” Our high court has “construe[d] the statute




                                 3
broadly to accomplish that protective purpose.” (People ex rel.
Lungren v. Superior Court (1996) 14 Cal.4th 294, 314.)
       Enforcement actions “may be brought by the Attorney
General in the name of the people of the State of California, by a
district attorney, by a city attorney of a city having a population
in excess of 750,000, or, with the consent of the district attorney,
by a city prosecutor in a city or city and county having a full-time
city prosecutor.” (Health & Saf. Code, § 25249.7, subd. (c).) A
private citizen may also bring an action to enforce Proposition 65
provided that: (1) at least 60 days before filing a lawsuit the
citizen gives notice to the alleged violator, the Attorney General,
and district attorneys and city attorneys in the jurisdiction where
the violation occurred; and (2) no public official has already
commenced prosecution of the same violation. (Ibid., subd. (d)(1)
–(2).)
       “If the notice alleges a violation of [Health and Safety Code]
Section 25249.6, 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. 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).)




                                 4
Regulations Governing 60-day Notices
      The Governor designated the Office of Environmental
Health Hazard Assessment (OEHHA) as the “ ‘[l]ead agency’ ” to
implement Proposition 65. (Cal. Code Regs., tit. 27, § 25102,
subd. (o); Health & Saf. Code, § 25249.12, subd. (a).) “Because
the statute provides relatively little definition of the notice
requirements,” OEHHA adopted regulations to specify the
requirements for the 60-day notices. (OEHHA, Final Statement
of Reasons, Adopt Section 12903, Notices of Violation, Title 22,
Division 2, California Code of Regulations (1997) pp. 2–3 (Final
Statement of Reasons)
<https://oehha.ca.gov/sites/default/files/media/sec_12903_fsor_199
6.pdf> [as of April 28, 2026], archived at <https://perma.cc/HE8C-
EMRE>.) 1
      In the Final Statement of Reasons, OEHHA explained that
it proposed the adoption of section 25903 “to assure that [60-day]
notices actually further” three main purposes. (Final Statement
of Reasons, supra, at p. 4.)
      “[T]he first focus of citizen suit notice is to enable the
prosecutor ‘intelligently’ to decide whether to file suit. Where a
notice provides no real description of the claim, it cannot perform
that function.” (Final Statement of Reasons, supra, at p. 3.)
      “Second, the notice allows a defendant an opportunity to
cure the violation. . . . Once informed of the violation, the
defendant can bring the violation to a halt, and at least prevent


1     California Code of Regulations, title 22, section 12903 was
renumbered to section 25903 without substantive change. (Cal.
Code Regs., tit. 22, § 25903, Register 2008, No. 25 (June 20, 2008)
pp. 1021–1022.) We hereafter refer to section 12903 by its
current section number.




                                 5
the accrual of any further liability for penalties. While this
would not by itself necessarily prevent a civil action, since a
plaintiff may sue for penalties for past violations, the limitation
of continuing liability nonetheless is quite significant.” (Final
Statement of Reasons, supra, at p. 3.)
       Third, OEHHA explained that “[a]s a condition precedent
to establishing a citizen’s right to proceed in the public interest
on that matter, and to collect funds for the public treasury, the
notice requirement should not be dismissed as a mere
technicality.” (Final Statement of Reasons, supra, at p. 3.) The
notice provisions “are important not only in enabling law
enforcement officials to investigate a notice, but in defining the
scope of the private person’s right to sue under the statute.” (Id.
at p. 4.) Thus, “violations that are not adequately described in
the notice cannot properly be a part of the private action.” (Ibid.)
       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)(1), requires that a notice
include as an attachment a copy of a summary of Proposition 65
prepared by OEHHA.
       Section 25903, subdivision (b)(2), states: “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,




                                 6
expressed in terms of common usage and understanding, on each
of the indicated topics.” It further provides that all notices “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 to have occurred; and [¶] (4) the
name of each listed chemical involved in the alleged violation.”
(Id., subd. (b)(2)(A).)
       The notice must also identify “the route of exposure by
which exposure is alleged to occur (e.g., by inhalation, ingestion,
dermal contact)” (§ 25903, subd. (b)(2)(C)), and “the name of the
consumer product or service, or the specific type of consumer
product or services, that cause the violation, with sufficient
specificity to inform the recipients of the nature of the items
allegedly sold in violation of the law and to distinguish those
products or services from others sold or offered by the alleged
violator for which no violation is alleged.” (Id., subd. (b)(2)(D).)
HLF’s 60-Day Notice
       On August 26, 2022, Poulsen Law, P.C. (Poulsen Law) on
behalf of HLF, served defendants, the Office of the Attorney
General, and the District Attorneys of California Counties and
City Attorneys with a document titled “Sixty-Day Notice of Intent
to Sue for Violation of the Safe Drinking Water and Toxic
Enforcement Act of 1986” (the Notice). The Notice asserted that
a specific brand of farm-raised mussels sold by defendants
contained cadmium, lead, and lead compounds, which are listed
under Proposition 65 as chemicals known to the State of
California to cause developmental toxicity, reproductive toxicity,
and cancer. The Notice also claimed that defendants had failed




                                 7
to provide a warning to consumers “that persons handling,
ingesting and/or otherwise using the Specified Product are being
exposed to cadmium and lead.” It attached a certificate of merit
signed by Aida Poulsen, Poulsen Law’s managing attorney, and a
summary of Proposition 65.
        The Notice identified David Steinman as HLF’s chief officer
but did not provide his contact information. The Notice listed the
phone number and address of Poulsen Law in the header on its
first page. It concluded with an instruction to “direct all
communications regarding this Notice to this office” and was
signed by Poulsen. The Notice provided an e-mail address for
Poulsen Law under Poulsen’s signature.
The Lawsuit
        In July 2023, HLF filed a lawsuit against defendants
asserting a cause of action for failure to provide a clear and
reasonable warning in violation of Health and Safety Code
section 25249.6. The complaint alleged more than 60 days had
passed since HLF served the Notice, and the Attorney General
had not filed a public enforcement action. HLF sought civil
penalties, injunctive relief, and reasonable attorney fees and
costs. 2
        In August 2024, defendants moved for judgment on the
pleadings. Defendants argued that the Notice did not strictly or

2     In February 2024, HLF served a second 60-day notice on
defendants, the Office of the Attorney General, and the District
Attorneys of California Counties and City Attorneys. In addition
to the mussels identified in the Notice, the second notice claimed
a brand of farm-raised clams sold by defendants allegedly
contained lead, lead compounds, and cadmium, and defendants
had failed to provide a warning to consumers that they were




                                 8
substantially comply with Proposition 65’s pre-suit notice
requirements because it failed to identify the name, address, and
telephone number of the noticing individual within the noticing
entity and instead provided the name and contact information for
HLF’s outside counsel.
       The trial court granted the motion for judgment on the
pleadings “for all the reasons stated in the defendants’ papers as
well as by the Court during argument.” 3 The court entered
judgment accordingly.
       HLF timely appealed.
Pancho Villa’s
       While this appeal was pending, the Fourth District issued
its decision in Pancho Villa’s. 4
       The trial court in Pancho Villa’s concluded the plaintiff’s
Proposition 65 notice letter was defective because it provided the
contact information for the plaintiff’s “retained counsel” rather
than contact information for a “ ‘ “responsible individual within
the noticing entity.” ’ ” (Pancho Villa’s, supra, 118 Cal.App.5th at
p. 793.)



being exposed to these chemicals. In May 2024, HLF moved to
amend the complaint to include the allegations in the second
notice. The trial court denied the motion. The parties represent
that HLF filed a second action based on the Notice and the
second notice, but there is no evidence in the record before us of
that action or its status.
3     The appellate record does not include a record of the oral
proceedings in the trial court.
4      At our invitation, the parties submitted supplemental letter
briefs addressing Pancho Villa’s.




                                 9
        The appellate court reversed. It held that Proposition 65’s
notice requirements were directory, rather than mandatory, and
their purpose could therefore be served by substantial
compliance. (Pancho Villa’s, supra, 118 Cal.App.5th at p. 798.)
The court reached this conclusion by considering the “three core
functions” of Proposition 65’s 60-day notice, as set forth in the
Final Statement of Reasons: “to provide information necessary 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.’ [Citations.]” (Id. at p. 795.)
Because failure to provide contact information for “ ‘a responsible
individual within the noticing entity’ ” does not defeat any of
these objectives, the court concluded section 25903 is to be given
directory effect. (Pancho Villa’s, at p. 795.)
        The court observed that OEHHA’s only comment regarding
the requirement that the 60-day notice provide the name,
address, and telephone number of the noticing individual or
responsible individual within the noticing entity was 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’ [citation].” (Pancho Villa’s,
supra, 118 Cal.App.5th at p. 797.) It concluded that “[d]irect
contact between the noticed entity and the noticing party’s
principal is not essential” to advance the purposes of promoting
dialogue or giving the alleged violator an opportunity to cure the
alleged violations, or any of the other core functions of the notice.




                                 10
(Ibid.) “Indeed, there is no ‘detailed and specific’ mandate which
requires or explains why contact must occur directly between the
noticed party and noticing party.” (Ibid.)
       The Pancho Villa’s court next considered whether the
plaintiff had substantially complied with Proposition 65’s notice
regulations when it provided the defendant with the name and
number of retained counsel and directed that counsel be
contacted for any questions or discussion. (Pancho Villa’s, supra,
118 Cal.App.5th at pp. 798–799.) The court concluded that
“[p]roviding an attorney’s contact information does not
undermine any of Proposition 65’s objectives and substantially
complies with the notice requirement.” (Id. at p. 799.) It located
no support for the trial court’s conclusion that the intent of pre-
suit notice was to enable businesses receiving Proposition 65
notices “ ‘to economically and efficiently address concerns raised
in the pre-suit notice by directly communicating with the private
citizen enforcer.’ ” (Ibid.) Rather, “[b]y 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 plaintiff’s] designated contact
person has sufficient knowledge of the alleged violation. His or
her employment position does not affect whether that core
objective is obtained.” (Ibid.)
       The appellate court disagreed with the trial court’s
“pronouncement that it ‘becomes a cumbersome, expensive
process if the targeted business is forced to communicate through
counsel’ . . . .” (Pancho Villa’s, supra, 118 Cal.App.5th at p. 799.)
It instead observed that counsel “may, in fact, be in the best
position to communicate about the alleged violation” because the




                                 11
certificate of merit must be signed by the noticing party’s
attorney if the noticing party is represented. (Ibid.) A retained
attorney who consulted with experts regarding the details of the
exposure and evaluated the merits of the enforcement action “is
thus well positioned to communicate with alleged violators and
public enforcers.” (Ibid.) In response to the lower court’s
reasoning, the appellate court explained that “[a]ttorney
involvement is also appropriate because actions are generally
brought against larger companies” and “settlements are highly
technical, involve scientific analysis and multiple legal
requirements, and must be approved by the California Attorney
General and published on its website.” (Id. at pp. 799–800.)
       Finally, the Court of Appeal rejected the trial court’s
assertion that the “ ‘requirement ensures that the private
enforcer is genuine, and not simply a “straw person” used by a
law firm seeking only to generate legal fees.’ ” (Pancho Villa’s,
supra, 118 Cal.App.5th at p. 800.) “[W]hile it is appropriate for a
trial court to ‘ensure that its judgment serves the public interest’
in a Proposition 65 action [citation], there is no indication
OEHHA intended noticed parties to undertake this type of
inquiry.” (Ibid.) The court observed that plaintiffs had alleged
the existence of a known carcinogen in a product sold by the
defendant. (Ibid.) Irrespective of the plaintiff’s motives 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.” ’ [Citation.]” (Ibid.)




                                  12
                           DISCUSSION 5
       HLF contends that section 25903, subdivision (b)(2)(A)(1),
is directory and HLF substantially complied with its
requirements by providing the name and contact information for
outside counsel. HLF also argues that its notice complied with
the literal requirements of section 25903, subdivision (b)(2)(A)(1).
       Defendants contend HLF’s notice did not satisfy the
statute’s plain language and this court need proceed no further to
affirm the judgment. Defendants further argue that strict
compliance is required under tests set forth in Prang v. Los
Angeles County Assessment Appeals Bd. No. 2 (2020) 54
Cal.App.5th 1 (Prang), and HLF neither strictly nor substantially
complied with section 25903.
       For purposes of argument, we assume the Notice did not
satisfy the literal requirements of section 25903,
subdivision (b)(2)(A)(1), because it did not provide the contact
information for Steinman or another person within HLF.

5     We deny HLF’s request for judicial notice of 20 trial court
orders concerning the adequacy of 60-day notices “because ‘only
relevant material may be [judicially] noticed,’ ” and trial court
decisions are “not relevant.” (Sandhu v. Board of Administration
(2025) 108 Cal.App.5th 1048, 1061, fn. 4 [declining to take
judicial notice of trial court decisions in four related cases]; see
also Pereira-Goodman v. Anderson (1997) 54 Cal.App.4th 864,
872, fn. 5 [declining to take judicial notice of superior court
decisions, which “do not have precedential value”].) We grant
defendants’ request for judicial notice of the Notice and Final
Statement of Reasons. (Evid. Code, §§ 452, subds. (b), (c), (h),
459, subd. (a).) We deny defendants’ request for judicial notice of
other materials because they are unnecessary to our resolution of
the appeal. (County of San Diego v. State of California (2008) 164
Cal.App.4th 580, 613, fn. 29.)




                                13
Accordingly, we do not address the parties’ arguments regarding
whether outside counsel, as an agent of the noticing entity, is a
“responsible individual within the entity.” 6 We instead focus our
analysis on the doctrine of substantial compliance.
       “Our review of all issues in this appeal is de novo because it
involves review of an order granting judgment on the pleadings
[citation], interpretation of a regulation [citation], and
determination of whether a Proposition 65’s 60-day notice
complies with statutory requirements [citation].” (Pancho Villa’s,
supra, 118 Cal.App.5th at pp. 793–794.)
I.     The Doctrine of Substantial Compliance Applies To
       Section 25903, subdivision (b)(2)(A)(1)
       “ ‘ “Substantial compliance, as the phrase is used in
decisions, means actual compliance in respect to the substance


6      Defendants requested leave to file a supplemental
opposition brief on the ground that HLF raised the argument
that outside counsel can be the “noticing individual” under the
literal meaning of section 25903 for the first time in its reply
brief. They also contended that HLF improperly relied on new
authorities to propose “a blanket rule that only substantial
compliance is needed with all statutory or regulatory
requirements that the name and address and phone number of a
potential litigant be provided in a pre-suit notice.”
       We denied defendants’ request to file a supplemental
opposition brief. We do not reach the argument concerning the
literal meaning of “noticing individual.” Further, a party “may
cite new authorities in support of arguments properly raised in
the opening brief.” (American Indian Model Schools v. Oakland
Unified School Dist. (2014) 227 Cal.App.4th 258, 276.) HLF cites
the new cases to support the contention made in its opening brief
that it substantially complied with section 25903 by providing
contact information for its counsel.




                                 14
essential to every reasonable objective of the statute,” as
distinguished from “mere technical imperfections of form.” ’
[Citations.]” (Hanf v. Sunnyview Development, Inc. (1982) 128
Cal.App.3d 909, 916; accord, Andrews v. Metropolitan Transit
System (2022) 74 Cal.App.5th 597, 606 (Andrews).) “ ‘ “[E]ach
objective or purpose of a statute must be achieved in order to
satisfy the substantial compliance standard,” ’ ” but “ ‘ “ ‘actual
compliance’ with every specific statutory requirement” ’ ” is not
required. (Andrews, at p. 606.) Put another way, the doctrine of
substantial compliance “ ‘ “excuses literal noncompliance only
when there has been ‘actual compliance in respect to the
substance essential to every reasonable objective of the statute.’ ” ’
[Citation.]” (Id. at p. 607.)
       “[T]he doctrine of substantial compliance does not apply at
all when a statute’s requirements are mandatory, instead of
merely directory. [Citations.] A mandatory statute ‘is one that is
essential to the promotion of the overall statutory design and
thus does not permit substantial compliance. [Citation.]’
[Citation.]” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th
1305, 1333.)
       Thus, we first consider whether section 25903,
subdivision (b)(2)(A)(1), is directory or mandatory.
       A.     Section 25903, subdivision (b)(2)(A)(1), is
              directory
       “[T]here is no simple, mechanical test for determining
whether a provision should be given ‘directory’ or ‘mandatory’
effect. ‘In order to determine whether a particular statutory
provision . . . is mandatory or directory, the court, as in all cases
of statutory construction and interpretation, must ascertain the
legislative intent. . . . When the object is to subserve some public




                                 15
purpose, the provision may be held directory or mandatory as will
best accomplish that purpose [citation] . . . .’ ” (Morris v. County
of Marin (1977) 18 Cal.3d 901, 909–910, fn. omitted.)
       “[S]ubstantial compliance is presumed to satisfy the intent
of the Legislature,” even if a statute does not expressly permit
substantial compliance. (San Diegans for Open Government v.
City of Oceanside (2016) 4 Cal.App.5th 637, 647.) “Even when a
statute employs ‘mandatory’ terms, ‘ “[i]f a statutory directive
does not go to ‘ “the essence” of the particular object sought to be
obtained, or the purpose to be accomplished’ and a ‘departure
from the statute will cause no injury to any person affected by it,’
the provision will be deemed directory.” ’ [Citation.]” (Mission
Springs Water Dist. v. Desert Water Agency (2024) 101
Cal.App.5th 413, 433; accord, Manderson-Saleh v. Regents of
University of California (2021) 60 Cal.App.5th 674, 703
(Manderson-Saleh) [“even when a statute uses ‘mandatory’ terms,
substantial compliance with statutory directives will suffice if the
purpose of the statute is satisfied”].) “ ‘[T]he paramount
consideration is the objective of the statute.’ [Citation.]”
(Manderson-Saleh, at p. 703.) Courts have applied these
principles to regulations. (Ibid.)
       In the Final Statement of Reasons, OEHHA identified
three purposes underlying section 25903. The core functions of
the notice are “to provide information necessary 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.’ ” (Pancho Villa’s, supra, 118




                                16
Cal.App.5th at p. 795, quoting Final Statement of Reasons,
supra, at pp. 3–4.)
       Each of these purposes requires that the 60-day notice
provide sufficient information about the violation. OEHHA
explained that a 60-day notice fails to permit a prosecutor to
intelligently decide whether to file suit when it “provides no real
description of the claim.” (Final Statement of Reasons, supra, at
p. 3.) Similarly, with respect to the second purpose, OEHHA
explained that “the alleged violator must be provided sufficient
information to bring itself into compliance because it is
compliance with the Proposition 65 requirements that protects
the public and the environment.” (Ibid.) The final objective is to
limit the scope of a private citizen enforcement action to those
claims that were adequately described in the 60-day notice. (Id.
at pp. 3–4.) OEHHA observed that, in the years preceding the
adoption of section 25903, “many notices d[id] not describe the
nature of the alleged violation in an intelligible manner.” (Final
Statement of Reasons, at p. 7.) The identification of outside
counsel, rather than a responsible individual within the noticing
entity, does not go to the essence of these objectives.
       OEHHA’s only statement concerning section 25903,
subdivision (b)(2)(A)(1), was that “[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.” (Final Statement of Reasons, supra, at p. 8.) We
agree that “[d]irect contact between the noticed entity and the
noticing party’s principal is not essential to promoting this
purpose” in the absence of any “ ‘detailed and specific’ mandate
which requires or explains why contact must occur directly




                                17
between the noticed party and noticing party.” (Pancho Villa’s,
supra, 118 Cal.App.5th at p. 797.)
       Defendants rely on DiPirro v. American Isuzu Motors, Inc.
(2004) 119 Cal.App.4th 966, 975 (DiPirro), to contend a central
purpose of pre-suit notice is to facilitate resolution of Proposition
65 matters “before a suit is filed, defense lawyers are hired and a
litigation posture is developed.” However, DiPirro concerned a
plaintiff’s failure to serve certificates of merit before filing a
Proposition 65 enforcement action and considered whether post-
filing service of the certificates cured that failure. (Id. at p. 972.)
The court concluded it did not. The legislation requiring the
service of a certificate of merit and disclosure of the factual basis
for the certificate of merit to the Attorney General was intended
to “increase[] the Attorney General’s understanding of the claim’s
likelihood of success, allowing that office to focus its efforts to
discourage filing of the truly frivolous” before an action was filed.
(Id. at p. 974.) In reaching its conclusion, the court also cited
regulations that “set out in detail what factual material must be
provided [in the notice of violation provided to the Attorney
General] (Cal. Code Regs., tit. 11, § 3102) and authorize contacts
between the Attorney General and the noticing party (Cal. Code
Regs., tit. 11, § 3103, subd. (b)).” (Ibid.) DiPirro did not address
the purposes of section 25903 or partial noncompliance with its
notice requirements.
       Nothing in the Final Statement of Reasons suggests that
forestalling litigation was a motivating purpose of section 25903
generally, or of subdivision (b)(2)(A)(1) specifically. Rather,
OEHHA indicated that the regulation’s purpose was to provide
sufficient information to allow a violator promptly to “bring the
violation to a halt, and at least prevent the accrual of any further




                                  18
liability for penalties.” (Final Statement of Reasons, supra, at
p. 3, italics added.) Indeed, OEHHA recognized that halting a
violation “would not by itself necessarily prevent a civil action,
since a plaintiff may sue for penalties for past violations.” (Ibid.)
        Defendants further contend that strict compliance with
section 25903 is required to fulfill the 60-day notice’s purpose of
deterring unscrupulous private enforcers. Undoubtedly, the 60-
day notice is intended to prevent the filing of baseless lawsuits
and lawsuits of indefinite scope. (Final Statement of Reasons,
supra, at pp. 3–4, 7–8; see also DiPirro, supra, 119 Cal.App.4th at
p. 970 [legislation requiring service of certificate of merit “was
prompted by a concern that private enforcers were abusing
Proposition 65 by filing meritless lawsuits alleging that
businesses had failed to provide adequate warnings about
chemical discharges”].)
        However, defendants appear to argue that, even if a
noticing party identifies an alleged violation with the required
specificity, a distinct purpose of section 25903 is to deter actions
filed by “lawyer bounty hunters,” and to ensure enforcers are
“legitimately pursuing the claim in the public interest,” by
enabling alleged violators to “fully evaluate who is threatening
legal action.” We agree with the Pancho Villa’s court that “while
it is appropriate for a trial court to ‘ensure that its judgment
serves the public interest’ in a Proposition 65 action [citation],
there is no indication OEHHA intended noticed parties to
undertake this type of inquiry.” (Pancho Villa’s, supra, 118
Cal.App.5th at p. 800.)
        Defendants also cite OEHHA’s statement that the language
of section 25903, subdivision (a), was intended “to make clear
that a non-complying notice does not leave the court with




                                 19
authority to fashion whatever remedy it deems appropriate, but
instead means that the private person had no legal ability to
commence an action under the statute.” (Final Statement of
Reasons, supra, at p. 5.) Defendants contend this establishes
that strict compliance with section 25903 is mandated.
       We note, however, that section 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 interpreted to require
more than reasonably clear information, expressed in terms of
common usage and understanding, on each of the indicated
topics.” (Italics added.) 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.” (Final
Statement of Reasons, supra, at p. 16, italics added.) This
language supports the conclusion that non-compliance for
purposes of section 25903, subdivision (a), should be judged by
whether the notice provides adequate information for prosecutors
and the alleged violator to assess and address the alleged
violation. (Cf. Life v. County of Los Angeles (1991) 227
Cal.App.3d 894, 899 [Government Claims Act statutes “should
not be used as traps for the unwary where their purpose has been
satisfied, and to that end, courts employ a test of substantial
compliance rather than strict compliance”].) We reject
defendants’ argument that the “trap for the unwary” language
was intended to relate solely to section 25903, subdivision (b)(4).
Although it appears in the section of the Final Statement of
Reasons concerning subdivision (b)(4), OEHHA prefaces this




                                20
language with the statement “[a]s noted above (see discussion on
paragraph (b)(2) on page 7),” which indicates that this principle
relates to section 25903, subdivision (b) more broadly. (Final
Statement of Reasons, supra, at p. 16.)
       We conclude that application of the substantial compliance
doctrine to section 25903, subdivision (b)(2)(A)(1), is appropriate
and consistent with the purposes of section 25903 and the
remedial purpose of Proposition 65. 7
       B.     Prang does not compel a different conclusion
       In Prang, the court held it could infer 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’ [citation].” (Prang,
supra, 54 Cal.App.5th at p. 19.) Defendants contend that if
either of the Prang tests are satisfied, strict compliance is
required. They argue that section 25903, subdivision (b)(2)(A)(1),
contains a “detailed and specific mandate” and we therefore need
proceed no further in our analysis. Defendants additionally


7      Defendants argue there is no evidentiary support for the
Pancho Villa’s court’s statements that enforcement “actions are
generally brought against larger companies” and “settlements are
highly technical, involve scientific analysis and multiple legal
arguments.” (Pancho Villa’s, supra, 118 Cal.App.5th at pp. 799–
800.) Defendants assert that the statements are not categorically
true. We need not resolve this issue. We note that the Pancho
Villa’s opinion included the challenged statements to rebut a
“pronouncement” of the trial court, which did not appear to relate
to any specific language in the regulation or Final Statement of
Reasons. (Id. at p. 799.) Our analysis is based on the Final
Statement of Reasons.




                                 21
argue that the “focus on whether the intent of the statutory
provision can only be served by strict compliance” is an outdated
approach, and courts have more recently relied on a statute’s
language to decide whether strict compliance is required. We
disagree.
        The “ ‘detailed and specific mandate’ ” test is only briefly
discussed in Prang. In two sentences, the court concluded the
test was met because the relevant statute provided requirements
for filing a “ ‘change in ownership statement.’ ” (Prang, supra, 54
Cal.App.5th at p. 20.)
        Yet, Harold L. James, Inc. v. Five Points Ranch, Inc. (1984)
158 Cal.App.3d 1 (Harold L. James), which Prang quoted in
support of this test, did not state that such a mandate exists
whenever a statute uses mandatory language. (Prang, supra, 54
Cal.App.5th at p. 19.) Harold L. James surveyed cases applying
strict and substantial compliance to provisions of the mechanic’s
lien law. The court then concluded: “where the Legislature has
provided a detailed and specific mandate as to the manner or
form of serving notice upon an affected party that its property
interests are at stake, any deviation from the statutory mandate
will be viewed with extreme disfavor.” 8 (Harold L. James, at
p. 6.) The Legislature had “unmistakably expressed its
dissatisfaction with the former statutory language and its
manner of its presentation” by amending the mechanic’s lien law
to require preliminary lien notices to include “a boldface alert to
the property owner” providing an “explicit warning of the danger
of losing his property in connection with the labor or materials

8    We note that lien statutes are generally strictly construed.
(Diamond v. Superior Court (2013) 217 Cal.App.4th 1172, 1193
(Diamond).)




                                 22
which were or were to be furnished by the subcontractor giving
the notice.” (Id. at p. 7.) The plaintiffs’ notice used outdated
statutory language “in rather small print.” (Id. at p. 3.) The
court concluded it was unnecessary to “speculate as to what, if
any, deviations from the currently specified statutory lien
language might permit a court to determine that such deviations
did not render the subsequent lien unenforceable,” because the
plaintiffs’ “complete failure to include the modifications” the
Legislature had made to the statute “manifestly does make the
resultant lien invalid.” (Ibid.)
       Unlike the Legislature in Harold L. James, OEHHA has
not “unmistakably expressed its dissatisfaction” with a 60-day
notice providing the contact information of the noticing entity’s
outside counsel. (Harold L. James, supra, 158 Cal.App.3d at
p. 7.) Nothing in the Final Statement of Reasons suggests that
OEHHA considered and rejected such language. We are
therefore faced with a question the Harold L. James court
expressly did not answer: what, if any, deviation from the
regulation permits us to determine that the Notice is
nevertheless compliant with the regulatory purpose.
       Nor does Hub Construction Specialties, Inc. v. Esperanza
Charities, Inc. (2016) 244 Cal.App.4th 855, which Prang also
cited in support of the “ ‘detailed and specific mandate’ ” test,
establish that express statutory requirements categorically
compel strict compliance. (Prang, supra, 54 Cal.App.5th at p. 19.)
In Hub Construction, the plaintiff was required by statute to
prove that notice of a mechanic’s lien was served with an
affidavit accompanied by a return receipt. (Hub Construction, at
p. 857.) Although the parties stipulated that the plaintiff served
the required notice by certified mail, the plaintiff did not request




                                23
a return receipt. (Id. at pp. 857–858.) The trial court dismissed
the case because of the plaintiff’s failure to strictly comply with
the statute. (Ibid.) The appellate court reversed. (Id. at p. 857.)
It observed that “courts do not demand strict compliance with
every aspect of the mechanic’s lien law,” but had concluded only
“that ‘transmittal methods and notice requirements must be
strictly construed.’ ” (Id. at p. 863, quoting Harold L. James,
supra, 158 Cal.App.3d at p. 7.) Under the circumstances, the
court did “ ‘not believe that the statute’s purpose should, or does,
lead to th[e] aridly formalistic result’ ” reached by the trial court.
(Hub Construction, at p. 864.)
        Thus, neither Harold L. James nor Hub Construction
supports that a “detailed and specific mandate” may be inferred
from statutory language alone.
        Even if we assumed that section 25903,
subdivision (b)(2)(A)(1), reflected a “detailed and specific
mandate” from OEHHA based only on its plain language, we
would find it necessary to consider the second Prang test before
determining whether strict compliance with section 25903 is
required. Contrary to defendants’ suggestion, recent case law
does not establish that the literal language of a statute or
regulation definitively settles the question of whether it is
mandatory or directory. (E.g., Malear v. State of California
(2023) 89 Cal.App.5th 213, 224 [“doctrine of substantial
compliance, by its nature, does not require strict compliance” but
“excuses strict compliance” when applicable]; Manderson-Saleh,
supra, 60 Cal.App.5th at p. 698 [noncompliance with literal
meaning of regulation “does not end the analysis”].)
        Moreover, although language in Prang suggests that either
of its tests is independently sufficient to establish that strict




                                  24
compliance is required, the court only reached its conclusion in
that case after considering both. (Prang, supra, 54 Cal.App.5th
at pp. 19–22.) 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. (Ibid.) Likewise, in the
other decisions defendants cite in support of their claim that the
language of the statute is paramount, the courts considered
whether the intent of the statute could be served without
demanding strict compliance and concluded it could not. 9 We
take the same approach.


9      See 2710 Sutter Ventures, LLC v. Millis (2022) 82
Cal.App.5th 842, 864 (no “actual compliance in respect to the
substance of every reasonable objective of” rent ordinance at
issue where notice did not fulfill purpose of providing
“information regarding the full scope of the right to relocation
assistance benefits”); Andrews, supra, 74 Cal.App.5th at
pages 606–607 (where purposes of relevant statute were to
inform the claimant of applicable statute of limitations and
desirability of promptly consulting an attorney, substantial
compliance doctrine did not apply as notice failed to fulfill second
objective); Prang, supra, 54 Cal.App.5th at page 20 (strict
compliance with statutory requirement that form be filed with
State Board of Equalization was necessary “[t]o ensure that the
entity with the most expertise at parsing complex transactions
between and among legal entities is given the opportunity to do
so”); Diamond, supra, 217 Cal.App.4th at pages 1190–1192
(legislative history and inclusion of penalty for failure to comply
with statutory lien notice requirements demonstrated they were
mandatory); IGA Aluminum Products, Inc. v. Manufacturers
Bank (1982) 130 Cal.App.3d 699, 704 (noncompliant notice did
not fulfill statutory purpose where amendment made “manifest




                                 25
       For the reasons discussed above, we agree 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. (Pancho Villa’s, supra, 118 Cal.App.5th at
pp. 795–796.)
       C.     The Notice complied with all reasonable
              objectives of section 25903
       The Notice identified HLF as the entity entitled to sue, the
defendants as alleged violators, the product and toxic chemicals
at issue, and the route of exposure. It attached a certificate of
merit and a summary of Proposition 65. The notice was signed
by Aida Poulsen and directed defendants to contact Poulsen Law.
       The only difference between the Notice and the notice in
Pancho Villa’s is that the latter concluded with directions to
contact a specific attorney for discussion. (Pancho Villa’s, supra,
118 Cal.App.5th at p. 792.) Here, the Notice concluded with an
instruction to “direct all communications regarding this Notice to
this office” without specifically identifying an attorney. However,
Poulsen signed the letter. This reasonably indicated that
Poulsen, who also signed the certificate of merit, was
knowledgeable about the violation and available to discuss the
Notice.
       The difference is immaterial in light of the purposes of the
statute. We conclude the Notice substantially complied with
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, supra, at p. 8; cf.

the Legislature’s intention that notice by ordinary first class mail
would no longer be effective under the statute”).




                                 26
Holm v. City of San Diego (1950) 35 Cal.2d 399, 401 [where
purpose of statute was to allow city officials to investigate merits
of claim, providing “ ‘an address . . . at which or through which
the claimant may be found’ ” was substantially compliant]; Uttley
v. City of Santa Ana (1933) 136 Cal.App. 23, 25 [claim that failed
to disclose claimant’s address was substantially compliant where
it “set forth the name of the plaintiff and the name and office
address of his attorney”].)




                                 27
                           DISPOSITION
      The judgment is reversed. The matter is remanded with
directions to the trial court to vacate its order granting
defendants’ motion for judgment on the pleadings and enter a
new order denying it. Chemical Toxin Working Group, Inc. shall
recover its costs on appeal.
      CERTIFIED FOR PUBLICATION




                                        ADAMS, J.



We concur:




                 EDMON, P. J.




                 HANASONO, J.




                              28