This case was last updated from Los Angeles County Superior Courts on 11/10/2022 at 20:06:47 (UTC).

CONSUMER ADVOCACY GROUP INC VS GEL SPICE COMPANY INC ET AL

Case Summary

On 06/20/2017 CONSUMER ADVOCACY GROUP INC filed a Personal Injury - Other Personal Injury lawsuit against GEL SPICE COMPANY INC. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judge overseeing this case is TERESA A. BEAUDET. The case status is Pending - Other Pending.
Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****5798

  • Filing Date:

    06/20/2017

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Personal Injury

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judge

TERESA A. BEAUDET

 

Party Details

Plaintiffs

CONSUMER ADVOCACY GROUP INCORPORATION

CONSUMER ADVOCACY GROUP

Defendants

BIG LOTS STORES INCORPORATION

GEL SPICE COMPANY LLC

GROCERY OUTLET INCORPORATION

GEL SPICE INCORPORATION

GEL SPICE COMPANY INCORPORATION

FRESH FINDS LLC

TARGET CORPORATION

CONSOLIDATED PROPERTY HOLDINGS

GEL SPICE CO. LLC

BIG LOTS INC.

TARGET STORES INC.

TARGET BRANDS INC.

GEL SPICE COMPANY INC.

VIVA BARGAIN CENTER INC.

Attorney/Law Firm Details

Plaintiff Attorneys

MALAMPHY TIFFINE E.

RALIDIS KENNETH WILLIAM

ROBINSON KEITH ALLYN

SATO PETER TSUYOSHI

YEROUSHALMI BENYAHOU ESQ.

YEROUSHALMI REUBEN

Defendant Attorneys

BROPHY CAROL RENE ROUNTREE

ESSICK KATHARINE

RAGLIN DENNIS EARL

SMITH CHRISTOPHER WILLIAM

VALLONE DANIELLE ELIZABETH

 

Court Documents

Separate Statement

11/9/2022: Separate Statement

Motion to Compel - MOTION TO COMPEL PRODUCTION OF DOCUMENT BY DEFENDANT'S PERSON MOST QUALIFIED

11/9/2022: Motion to Compel - MOTION TO COMPEL PRODUCTION OF DOCUMENT BY DEFENDANT'S PERSON MOST QUALIFIED

Declaration - DECLARATION OF DENNIS RAGLIN IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES

11/8/2022: Declaration - DECLARATION OF DENNIS RAGLIN IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES

Opposition - OPPOSITION TO CONSUMER ADVOCACY GROUPS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES

11/8/2022: Opposition - OPPOSITION TO CONSUMER ADVOCACY GROUPS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES

Ex Parte Application - EX PARTE APPLICATION 1.FOR CONTINUANCE 2.TO SHORTEN TIME

11/7/2022: Ex Parte Application - EX PARTE APPLICATION 1.FOR CONTINUANCE 2.TO SHORTEN TIME

Declaration - DECLARATION OF KENNETH W. RALIDIS IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS AND TRIAL BINDERS AND ADVANCE THE HEARING ON CAGS MOTION TO COMPEL

11/7/2022: Declaration - DECLARATION OF KENNETH W. RALIDIS IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS AND TRIAL BINDERS AND ADVANCE THE HEARING ON CAGS MOTION TO COMPEL

Declaration - DECLARATION OF KENNETH W. RALIDIS IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS AND TRIAL BINDERS AND ADVANCE THE HEARING ON CAGS MOTION TO COMPEL

11/7/2022: Declaration - DECLARATION OF KENNETH W. RALIDIS IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS AND TRIAL BINDERS AND ADVANCE THE HEARING ON CAGS MOTION TO COMPEL

Declaration - DECLARATION REUBEN

11/7/2022: Declaration - DECLARATION REUBEN

Declaration - DECLARATION OF REUBEN YEROUSHALMI IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS

11/7/2022: Declaration - DECLARATION OF REUBEN YEROUSHALMI IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS

Declaration - DECLARATION DECLARATION IN SUPPORT OF PLAINTIFF'S MTC

11/4/2022: Declaration - DECLARATION DECLARATION IN SUPPORT OF PLAINTIFF'S MTC

Proof of Service (not Summons and Complaint)

11/4/2022: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION TO MOTION IN LIMINE NO. "I"

11/3/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. "I"

Opposition - OPPOSITION TO DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE A TO PRECLUDE PLAINTIFF FROM OFFERING EXPERT TESTIMONY ASSERTING THAT THERE IS NO SAFE LEVEL OF LEAD AND/OR CHALLENGING

11/3/2022: Opposition - OPPOSITION TO DEFENDANTS NOTICE OF MOTION AND MOTION IN LIMINE A TO PRECLUDE PLAINTIFF FROM OFFERING EXPERT TESTIMONY ASSERTING THAT THERE IS NO SAFE LEVEL OF LEAD AND/OR CHALLENGING

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "C"

11/3/2022: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "C"

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "H"

11/3/2022: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "H"

Proof of Service (not Summons and Complaint)

11/3/2022: Proof of Service (not Summons and Complaint)

Opposition - OPPOSITION TO MOTION IN LIMINE NO. "E"

11/3/2022: Opposition - OPPOSITION TO MOTION IN LIMINE NO. "E"

Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "D"

11/3/2022: Opposition - OPPOSITION PLAINTIFF'S OPPOSITION TO MOTION IN LIMINE NO. "D"

496 More Documents Available

 

Docket Entries

  • 09/13/2023
  • Hearing09/13/2023 at 10:00 AM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion - Other Motion to Compel Further Production of Document by Gel PMQ

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  • 12/07/2022
  • Hearing12/07/2022 at 1:30 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Jury Trial

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  • 12/05/2022
  • Hearing12/05/2022 at 2:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Hearing on Motion for Summary Judgment

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  • 11/17/2022
  • Hearing11/17/2022 at 2:00 PM in Department 50 at 111 North Hill Street, Los Angeles, CA 90012; Final Status Conference

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  • 11/09/2022
  • Docketat 08:30 AM in Department 50, Teresa A. Beaudet, Presiding; Hearing on Ex Parte Application (1.for continuance 2.to shorten time)

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  • 11/09/2022
  • DocketMotion to Compel (Production of Document by Defendant's Person Most Qualified); Filed by CONSUMER ADVOCACY GROUP, INCORPORATION (Plaintiff)

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  • 11/09/2022
  • DocketSeparate Statement; Filed by CONSUMER ADVOCACY GROUP, INCORPORATION (Plaintiff)

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  • 11/08/2022
  • DocketDeclaration (OF DENNIS RAGLIN IN SUPPORT OF DEFENDANTS OPPOSITION TO PLAINTIFFS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES); Filed by Gel Spice Company Inc. (Defendant)

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  • 11/08/2022
  • DocketOpposition (TO CONSUMER ADVOCACY GROUPS EX PARTE APPLICATION TO: (1) CONTINUE CERTAIN F.S.C. COMPLIANCE REQUIREMENT DEADLINES); Filed by Gel Spice Company Inc. (Defendant)

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  • 11/07/2022
  • DocketDeclaration (OF KENNETH W. RALIDIS IN SUPPORT OF EX PARTE APPLICATION TO CONTINUE DEADLINE TO SUBMIT TRIAL DOCUMENTS AND TRIAL BINDERS AND ADVANCE THE HEARING ON CAG?S MOTION TO COMPEL); Filed by Consumer Advocacy Group (Plaintiff)

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770 More Docket Entries
  • 07/25/2017
  • DocketProof of Service (not Summons and Complaint); Filed by CONSUMER ADVOCACY GROUP, INCORPORATION (Plaintiff)

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  • 07/25/2017
  • DocketPROOF OF SERVICE SUMMONS

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  • 07/21/2017
  • DocketPROOF OF SERVICE OF SUMMONS

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  • 07/21/2017
  • DocketProof of Service (not Summons and Complaint); Filed by CONSUMER ADVOCACY GROUP, INCORPORATION (Plaintiff)

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  • 07/03/2017
  • DocketNotice of Case Management Conference; Filed by Clerk

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  • 07/03/2017
  • DocketNOTICE OF CASE MANAGEMENT CONFERENCE

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  • 06/20/2017
  • DocketComplaint; Filed by Consumer Advocacy Group (Plaintiff)

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  • 06/20/2017
  • DocketComplaint; Filed by CONSUMER ADVOCACY GROUP, INCORPORATION (Plaintiff)

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  • 06/20/2017
  • DocketSUMMONS

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  • 06/20/2017
  • DocketCOMPLAINT FOR PENALTY AND INJUNCTION

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Tentative Rulings

Case Number: ****5798 Hearing Date: October 3, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

consumer advocacy group, inc., et al.,

Plaintiff,

vs.

gel spice company, inc., et al.

Defendants.

Case No.:

****5798 [c/w 19STCV24048]

Hearing Date:

October 3, 2022

Hearing Time:

2:00 p.m.

[TENTATIVE] ORDER RE:

PHASE TWO COMBINED MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION BY DEFENDANTS GEL SPICE CO., INC, BIG LOT STORES, INC., GROCERY OUTLET, INC. AND TARGET CORPORATION ON STATUTORY AFFIRMATIVE DEFENSES ON THE

MERITS (HSC 25249.10(c))

Background

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed this Proposition 65 (“Prop 65”) action on June 20, 2017. The operative Second Amended Complaint (“SAC”) was filed on January 19, 2021 against, inter alia, Gel Spice Company, Inc. (“Gel Spice”), Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”). The SAC alleges ten causes of action for violations of Prop 65.

In the SAC, Plaintiff alleges that Defendants exposed California consumers and users of ground cinnamon, ground cumin, ground sage, ground cloves, poultry seasoning, garlic powder, and ground turmeric, which Defendants manufactured, distributed, or sold, to lead, without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure. (SAC, 49, 61, 72, 83, 93, 104, 115, 126, 137, 247.) Plaintiff alleges that Defendants thereby violated Prop 65. (Ibid.Ibid.Ibid.IdciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_51","Original_string":"Ibid.","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"1537","ReadOrderIndex":1476,"Refers_To":null,"ShortText":"218 Cal. App. 4th 1522","Start":1477,"Story":"wdMainTextStory"},"TOA":"","html":"

Ibid.

"}" id="-952635851">Ibid.)

On October 23, 2019, the Court issued an Order consolidating this action with Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc., et al. (Case No. 19STCV24048), in which one cause of action is alleged for violations of Prop 65. In Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc., et al., Plaintiff alleges that the defendants (including Gel Spice) exposed California consumers and users of ground sage, which defendants manufactured, distributed, or sold, to lead and arsenic, without first providing any type of clear and reasonable warning of such to the exposed persons before the time of exposure. (Defendants’ RJN, Ex. D, Compl., 32.)

Defendants now move for an order granting summary judgment, or in the alternative, summary adjudication on each cause of action, on the grounds that there is no triable issue of material fact with respect to Plaintiff’s allegation that Defendants exposed California consumers to lead and arsenic without warnings required under Prop 65. Plaintiff opposes.

Requests for Judicial Notice

The Court grants Defendants’ request for judicial notice in support of the motion as to Exhibits A, B, C, D, G, H, I, J, K, L, M, N, O, and P. The Court denies the request as to Exhibits E and F.

The Court grants Plaintiff’s request for judicial notice in support of the opposition as to Exhibits A, B, E, and F. The Court denies the request as to Exhibits C and D.

The Court denies Defendants’ request for judicial notice filed in support of the reply. The Court notes that “papers ..","QuotationType":"PhraseQuote","EditedQuotationText":"[t]he general rule of motion practice…is that new evidence is not permitted with reply papers..","MarkedQuotationText":"[t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers","CCMarkedQuotationText":" [t]he general rule of motion practice . . . is that new evidence is not permitted with reply papers .","SuggestionForQuote":"The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers","CCSuggestionForQuote":" The general rule of motion practice , which applies here , is that new evidence is not permitted with reply papers .","CitationText":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537","ModifiedCitationText":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"[t]he%20general%20rule%20of%20motion%20practice%e2%80%a6is%20that%20new%20evidence%20is%20not%20permitted%20with%20reply%20papers.."}}}" id="-744886625">[t]he general rule of motion practice…is that new evidence is not permitted with reply papers. (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537Full.CaseCitationciteReporter.NameCal. App. 4thReporter.Volume218Reporter.FirstPage1522Reporter. PinPages.First1537","Markup":null,"Master":"","name":"Psych_Cite_52","Original_string":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"1537","ReadOrderIndex":3135,"Refers_To":null,"ShortText":"218 Cal. App. 4th 1522","Start":3112,"Story":"wdMainTextStory"},"TOA":"","html":"

Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537

"}" id="401423498">Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.)

Evidentiary Objections

The Court rules on the parties’ “Joint Statement Regarding Parties’ Respective Objections to Evidence Related to Motions for Summary Judgment Re: ‘Merits’ Affirmative Defenses” as follows:[1]

Plaintiff’s Objections:

Objection No. 1 to Dr. Bloom’s Testimony: overruled

Objections to the Declaration of Dr. Barbara Beck: overruled

Objection No. 1 to the Declaration of Barbara J. Petersen: overruled

Objection No. 2 to the Declaration of Barbara J. Petersen: overruled

Objection No. 3 to the Declaration of Barbara J. Petersen: overruled

Objection No. 4 to the Declaration of Barbara J. Petersen: overruled

Objection No. 5 to the Declaration of Barbara J. Petersen: overruled

Objection No. 6 to the Declaration of Barbara J. Petersen: overruled

Objection No. 7 to the Declaration of Barbara J. Petersen: overruled

Objection No. 1 to the Declaration of Carla Kagel: overruled

Objection No. 1 to the Declaration of Dr. Chris Mackay: sustained as to 6, p.2, l. 28 - p. 3, l. 1; otherwise overruled

Objection No. 2 to the Declaration of Dr. Chis Mackay: sustained as to 8, ll. 1 starting with “Results” through l. 14 ending with “results;” otherwise overruled

Defendants’ Objections:

Objection No. 1 to the Declaration of Paul Damian: overruled

Objection No. 2 to the Declaration of Paul Damian: overruled

Objection No. 3 to the Declaration of Paul Damian: overruled

Objection No. 4 to the Declaration of Paul Damian: overruled

Objection No. 5 to the Declaration of Paul Damian: overruled

Objection No. 6 to the Declaration of Paul Damian: overruled

Objection No. 7 to the Declaration of Gagik Melikyan: sustained as to paragraph 28, overruled as to the remainder.

Objection No. 8 to the Declaration of Gagik Melikyan: overruled

Objection No. 9 to the Declaration of Gagik Melikyan: sustained as to “USDA-affiliated website” and “the website appears to be affiliated with the authoritative federal agency, i.e., USDA,” overruled as to the remainder

Objection No. 10 to the Declaration of Stacia DeSantis: overruled

Objection No. 11 to the Declaration of Stacia DeSantis: overruled

Objection No. 12 to the Declaration of Walter Meneses: overruled

Legal Standard

“[A] motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Code Civ. Proc., 437c, subd. (c)Code Civ. Proc., 437c, subd. (c)Code Civ. Proc., 437c, subd. (c)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_53","Original_string":"Code Civ. Proc., 437c, subd. (c)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":5399,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 437c","Start":5399,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 437c, subd. (c)

"}" id="-66110477">Code Civ. Proc., 437c, subd. (c).) “A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if the party contends that the cause of action has no merit, that there is no affirmative defense to the cause of action, that there is no merit to an affirmative defense as to any cause of action, that there is no merit to a claim for damages, as specified in Section 3294 of the Civil CodeSection 3294 of the Civil CodeSection 3294 of the Civil CodeFull.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_54","Original_string":"Section 3294 of the Civil Code","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":5890,"Refers_To":null,"ShortText":"Cal. Civ. Code 3294","Start":5890,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 3294 of the Civil Code

"}" id="675309404">Section 3294 of the Civil Code
, or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs.” (Code Civ. Proc., 437c(f)(1)Code Civ. Proc., 437c(f)(1)Code Civ. Proc., 437c(f)(1)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_55","Original_string":"Code Civ. Proc., 437c(f)(1)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":6021,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 437c","Start":6021,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 437c(f)(1)

"}" id="696203595">Code Civ. Proc., 437c(f)(1)
.) “A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Ibid.Ibid.Ibid.IdciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_56","Original_string":"Ibid.","Page":null,"Parallel":null,"Pattern":"Id","PinPage":null,"ReadOrderIndex":6225,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 437c(f)(1)","Start":6226,"Story":"wdMainTextStory"},"TOA":"","html":"

Ibid.

"}" id="522364644">Ibid.
)

The moving party bears the initial burden of production to make a prima facie showing that there are no triable issues of material fact. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850Full.CaseCitationciteReporter.NameCal. 4thReporter.Volume25Reporter.FirstPage826Reporter. PinPages.First850","Markup":null,"Master":"","name":"Psych_Cite_58","Original_string":"Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"850","ReadOrderIndex":6414,"Refers_To":null,"ShortText":"25 Cal. 4th 826","Start":6373,"Story":"wdMainTextStory"},"TOA":"","html":"

Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850

"}" id="483122003">Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850.) If the moving party carries this burden, the burden shifts to the opposing party to make a prima facie showing that a triable issue of material fact exists. (Ibid.Ibid.Ibid.IdciteReporter.Namecal4thReporter.Volume25Reporter.FirstPage826Reporter. PinPages.First850","Markup":null,"Master":"","name":"Psych_Cite_57","Original_string":"Ibid.","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"850","ReadOrderIndex":6593,"Refers_To":null,"ShortText":"25 Cal. 4th 826","Start":6594,"Story":"wdMainTextStory"},"TOA":"","html":"

Ibid.

"}" id="-1329598405">Ibid.
) Courts “Correct quotation (No suggestions)","CitationText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","ModifiedCitationText":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"liberally%20construe%20the%20evidence%20in%20support%20of%20the%20party%20opposing%20summary%20judgment%20and%20resolve%20doubts%20concerning%20the%20evidence%20in%20favor%20of%20that%20party."}}}" id="42958224">liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389Full.CaseCitationciteReporter.NameCal. 4thReporter.Volume39Reporter.FirstPage384Reporter. PinPages.First389","Markup":null,"Master":"","name":"Psych_Cite_59","Original_string":"Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"389","ReadOrderIndex":6798,"Refers_To":null,"ShortText":"39 Cal. 4th 384","Start":6760,"Story":"wdMainTextStory"},"TOA":"","html":"

Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389

"}" id="2043083185">Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389
.)

When a defendant seeks summary judgment or summary adjudication, he/she must show either (1) that one or more elements of the cause of action cannot be established; or (2) that there is a complete defense to that cause of action. (Code Civ. Proc., 437c(p)(2)Code Civ. Proc., 437c(p)(2)Code Civ. Proc., 437c(p)(2)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_60","Original_string":"Code Civ. Proc., 437c(p)(2)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":7052,"Refers_To":null,"ShortText":"Cal. Civ. Proc. Code 437c","Start":7052,"Story":"wdMainTextStory"},"TOA":"","html":"

Code Civ. Proc., 437c(p)(2)

"}" id="-877401415">Code Civ. Proc., 437c(p)(2).)

Discussion

Defendants contend that warnings are not required for the spice products at issue in this case because any exposures are below the Prop 65 “safe harbor” exemption.

“Passed in 1986 by California voters to protect the health and safety of Californians , Proposition 65 requires California to create and maintain a list of chemicals ‘ known to the state to cause cancer or reproductive toxicity . ’","QuotationType":"SentenceQuote","EditedQuotationText":"Passed in 1986 by California voters to protect the health and safety of Californians, Proposition 65 requires California to create and maintain a list of chemicals ‘known to the state to cause cancer or reproductive toxicity.’","MarkedQuotationText":"[Passed] in 1986 by California voters to protect the health and safety of Californians, Proposition 65 requires California to create and maintain a list of chemicals ‘known to the state to cause cancer or reproductive toxicity.’","CCMarkedQuotationText":" [Passed] in 1986 by California voters to protect the health and safety of Californians , Proposition 65 requires California to create and maintain a list of chemicals ‘ known to the state to cause cancer or reproductive toxicity . ’","SuggestionForQuote":"65Passed in 1986 by California voters to protect the health and safety of Californians, Proposition 65 requires California to create and maintain a list of chemicals “known to the state to cause cancer or reproductive toxicity.”","CCSuggestionForQuote":" 65Passed in 1986 by California voters to protect the health and safety of Californians , Proposition 65 requires California to create and maintain a list of chemicals “ known to the state to cause cancer or reproductive toxicity .","CitationText":"Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)","ModifiedCitationText":"Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"Passed%20in%201986%20by%20California%20voters%20to%20protect%20the%20health%20and%20safety%20of%20Californians,%20Proposition%2065%20requires%20California%20to%20create%20and%20maintain%20a%20list%20of%20chemicals%20%e2%80%98known%20to%20the%20state%20to%20cause%20cancer%20or%20reproductive%20toxicity.%e2%80%99"}}}" id="-937135714">Passed in 1986 by California voters to protect the health and safety of Californians, Proposition 65 requires California to create and maintain a list of chemicals ‘known to the state to cause cancer or reproductive toxicity.’” (Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)Full.CaseCitationciteReporter.NameCal. App. 4thReporter.Volume187Reporter.FirstPage554Reporter. PinPages.First566","Markup":null,"Master":"","name":"Psych_Cite_63","Original_string":"Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"566","ReadOrderIndex":7552,"Refers_To":null,"ShortText":"187 Cal. App. 4th 554","Start":7479,"Story":"wdMainTextStory"},"TOA":"","html":"

Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a)

"}" id="-177268329">Physicians Committee for Responsible Medicine v. McDonald’s Corp. (2010) 187 Cal.App.4th 554, 566, citing Health & Saf. Code, 25249.8, subd. (a).) Pursuant to Health and Safety Code section 25249.6Health and Safety Code section 25249.6Health and Safety Code section 25249.6Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_62","Original_string":"Health and Safety Code section 25249.6","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":7640,"Refers_To":null,"ShortText":"Cal. Health & Safety Code 25249.6","Start":7640,"Story":"wdMainTextStory"},"TOA":"","html":"

Health and Safety Code section 25249.6

"}" id="33241755">Health and Safety Code section 25249.6, “[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 provided in Section 25249.10Section 25249.10Section 25249.10SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_66","Original_string":"Section 25249.10","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":7947,"Refers_To":null,"ShortText":"Section 25249.10","Start":7947,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 25249.10

"}" id="106395109">Section 25249.10.”

“Lead has been identified as a known carcinogen and reproductive toxin under Proposition 65.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312 [internal quotations omitted]Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312 [internal quotations omitted]Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312 [internal quotations omitted]Full.CaseCitationciteReporter.NameCal. App. 4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_64","Original_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312 [internal quotations omitted]","Page":null,"Parallel":"","Pattern":"Full.CaseCitation","PinPage":"312","ReadOrderIndex":8290,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":8225,"Story":"wdMainTextStory"},"TOA":"","html":"

Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312 [internal quotations omitted]

"}" id="1879199171">Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312.) In addition, inorganic arsenic is listed as a chemical known to the state to cause cancer and reproductive toxicity. (Cal. Code Regs., tit. 27, 27001Cal. Code Regs., tit. 27, 27001Cal. Code Regs., tit. 27, 27001Full.CalCodeRegsciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_65","Original_string":"Cal. Code Regs., tit. 27, 27001","Page":null,"Parallel":null,"Pattern":"Full.CalCodeRegs","PinPage":null,"ReadOrderIndex":8486,"Refers_To":null,"ShortText":"Cal. Code Regs., tit. 27, 27001","Start":8486,"Story":"wdMainTextStory"},"TOA":"","html":"

Cal. Code Regs., tit. 27, 27001

"}" id="-835919734">Cal. Code Regs., tit. 27, 27001.)

Health and Safety Code section 25249.10, subdivision (c)Health and Safety Code section 25249.10, subdivision (c)Health and Safety Code section 25249.10, subdivision (c)Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_67","Original_string":"Health and Safety Code section 25249.10, subdivision (c)","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":8524,"Refers_To":null,"ShortText":"Cal. Health & Safety Code 25249.10","Start":8524,"Story":"wdMainTextStory"},"TOA":"","html":"

Health and Safety Code section 25249.10, subdivision (c)

"}" id="1128284377">Health and Safety Code section 25249.10, subdivision (c) provides that “Section 25249.6Section 25249.6Section 25249.6Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_69","Original_string":"Section 25249.6","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":8596,"Refers_To":null,"ShortText":"Cal. Health & Safety Code 25249.6","Start":8596,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 25249.6

"}" id="1544865954">Section 25249.6
shall not apply to…(c) An exposure for which the person responsible can show that the exposure poses no significant risk assuming lifetime exposure at the level in question for substances known to the state to cause cancer, and that the exposure will have no observable effect assuming exposure at one thousand (1000) times the level in question for substances known to the state to cause reproductive toxicity, based on evidence and standards of comparable scientific validity to the evidence and standards which form the scientific basis for the listing of such chemical pursuant to subdivision (a) of Section 25249.8Section 25249.8Section 25249.8SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_70","Original_string":"Section 25249.8","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":9216,"Refers_To":null,"ShortText":"Section 25249.8","Start":9216,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 25249.8

"}" id="-53702469">Section 25249.8. In any action brought to enforce Section 25249.6Section 25249.6Section 25249.6Full.StateStatuteCiteciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_71","Original_string":"Section 25249.6","Page":null,"Parallel":null,"Pattern":"Full.StateStatuteCite","PinPage":null,"ReadOrderIndex":9266,"Refers_To":null,"ShortText":"Cal. Health & Safety Code 25249.6","Start":9266,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 25249.6

"}" id="-1359119965">Section 25249.6, the burden of showing that an exposure meets the criteria of this subdivision shall be on the defendant.” “
This exemption is sometimes referred to as the ‘safe harbor’ defense.” ( PsychCase Full.CaseCitation 235 Cal. App. 4th 307 ","ParentCiteID":"Psych_Cite_14","Processed":true,"Citation":{"current_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313","original_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313","error":null,"fullText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313","refers_to_cite":null,"shortText":"235 Cal. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313

"}" id="-2097163737">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313.)

“level , or NOEL , is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect . The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations . In turn , the NOEL is divided by 1 , 000 to arrive at the maximum allowable dose level ( MADL ) , which is the threshold warning level for a listed chemical . Thus , the MADL ( maximum allowable dose level ) is set as one one-thousandth of the NOEL . At trial , a defendant can secure the protection of the exposure exemption by establishing ( 1 ) the NOEL ; ( 2 ) the level of exposure in question , and ultimately that the level of exposure was 1 , 000 times below the NOEL .","QuotationType":"SentenceQuote","EditedQuotationText":"The no observable effect level, or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical. Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL.","MarkedQuotationText":"The . . . no observable effect level . . . [,] or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. . . . The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. . . . In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical . . . . . . . Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. . . . At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL.","CCMarkedQuotationText":" The . . . no observable effect level . . . [,] or NOEL , is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect . . . . The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations . . . . In turn , the NOEL is divided by 1 , 000 to arrive at the maximum allowable dose level ( MADL ) , which is the threshold warning level for a listed chemical . . . . . . . Thus , the MADL ( maximum allowable dose level ) is set as one one-thousandth of the NOEL . . . . At trial , a defendant can secure the protection of the exposure exemption by establishing ( 1 ) the NOEL ; ( 2 ) the level of exposure in question , and ultimately that the level of exposure was 1 , 000 times below the NOEL .","SuggestionForQuote":"The ‘no observable effect level,’ or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. [Citation.] The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. [Citations.] In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical.” (Tri-Union, supra, 171 Cal.App.4th at p. 1555.) Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. “At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL.","CCSuggestionForQuote":" The no observable effect level , or NOEL , is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect . [ Citation . ] The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations . [ Citations . ] In turn , the NOEL is divided by 1 , 000 to arrive at the maximum allowable dose level ( MADL ) , which is the threshold warning level for a listed chemical . ( Tri-Union , supra , 171 Cal . App . 4th at p . 1555 . ) Thus , the MADL ( maximum allowable dose level ) is set as one one-thousandth of the NOEL . At trial , a defendant can secure the protection of the exposure exemption by establishing ( 1 ) the NOEL ; ( 2 ) the level of exposure in question , and ultimately that the level of exposure was 1 , 000 times below the NOEL .","CitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313 [internal quotations and citations omitted]","ModifiedCitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313 [internal quotations and citations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"The%20no%20observable%20effect%20level,%20or%20NOEL,%20is%20a%20scientific%20term%20denoting%20the%20maximum%20dose%20level%20at%20which%20a%20chemical%20is%20found%20to%20have%20no%20observable%20reproductive%c2%a0effect.%20The%20NOEL%20is%20determined%20through%20scientific%20inquiry%20and%20assessment%20as%20detailed%20in%20the%20framework%20set%20forth%20in%20the%20regulations.%c2%a0%20In%20turn,%20the%20NOEL%20is%20divided%20by%201,000%20to%20arrive%20at%20the%20maximum%20allowable%20dose%20level%20(MADL),%20which%20is%20the%20threshold%20warning%20level%20for%20a%20listed%20chemical.%20Thus,%20the%20MADL%20(maximum%20allowable%20dose%20level)%20is%20set%20as%20one%20one-thousandth%20of%20the%20NOEL.%20At%20trial,%20a%20defendant%20can%20secure%20the%20protection%20of%20the%20exposure%20exemption%20by%20establishing%20(1)%20the%20NOEL;%20(2)%20the%20level%20of%20exposure%20in%20question,%20and%20ultimately%20that%20the%20level%20of%20exposure%20was%201,000%20times%20below%20the%20NOEL."}}}" id="1695649708">The no observable effect level, or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical. Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL. ( PsychCase Full.CaseCitation 235 Cal. App. 4th 307 ","ParentCiteID":"CITRUS_BOOKMARK18","Processed":true,"Citation":{"current_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313 [internal quotations and citations omitted]","original_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. 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(2015) 235 Cal.App.4th 307","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"51","End":1340,"Offset":9556,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"52","Name":"Psych_Cite_22","Range":{"$id":"53","ts":{"$ref":"51"},"_Start":1218,"_End":1236,"_Text":"“The no observable effect level, or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. In turn, the NOEL is divided by 1,000 to arrive at the maximum allowable dose level (MADL), which is the threshold warning level for a listed chemical. Thus, the MADL (maximum allowable dose level) is set as one one-thousandth of the NOEL. At trial, a defendant can secure the protection of the exposure exemption by establishing (1) the NOEL; (2) the level of exposure in question, and ultimately that the level of exposure was 1,000 times below the NOEL.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313 [internal quotations and citations omitted].) “The Office of Environmental Health Hazard Assessment (OEHHA) has already determined the MADL for lead. The regulations set the ‘safe harbor’ warning threshold for carcinogenicity as to lead at 15 micrograms per day. (Regs., 25705.) The regulatory safe harbor level for reproductive toxicity for lead is 0.5 micrograms per day. (Id., 25805, subd. (b).)” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313.) 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(2015) 235 Cal.App.4th 307, 313 [internal quotations and citations omitted].) “The Office of Environmental Health Hazard Assessment (OEHHA) has already determined the MADL for lead. The regulations set the ‘safe harbor’ warning threshold for carcinogenicity as to lead at 15 micrograms per day. (Regs., 25705.) The regulatory safe harbor level for reproductive toxicity for lead is 0.5 micrograms per day. (Id., 25805, subd. (b).)” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313.) "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"56","Name":"Psych_Cite_24","Range":{"$id":"57","ts":{"$ref":"51"},"_Start":1246,"_End":1335,"_Text":"“The no observable effect level, or NOEL, is a scientific term denoting the maximum dose level at which a chemical is found to have no observable reproductive effect. The NOEL is determined through scientific inquiry and assessment as detailed in the framework set forth in the regulations. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313 [internal quotations and citations omitted]

"}" id="1204215049">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313 [internal quotations and citations omitted].) “The Office of Environmental Health Hazard Assessment (OEHHA) has already determined the MADL for lead. The regulations set the ‘safe harbor’ warning threshold for carcinogenicity as to lead at 15 micrograms per day. (Regs., 25705 25705 25705SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_75","Original_string":" 25705","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":10672,"Refers_To":null,"ShortText":" 25705","Start":10672,"Story":"wdMainTextStory"},"TOA":"","html":"

25705

"}" id="330491051"> 25705.) The regulatory safe harbor level for reproductive toxicity for lead is 0.5 micrograms per day. (Id., 25805, subdId., 25805, subdId., 25805, subdIdciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_72","Original_string":"Id., 25805, subd","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"25805","ReadOrderIndex":10777,"Refers_To":null,"ShortText":"Cal. Health & Safety Code 25805, subd","Start":10778,"Story":"wdMainTextStory"},"TOA":"","html":"

Id.,  25805, subd

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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 313

"}" id="-1248269670">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 313.)

Defendants assert that the spice products at issue in this case (the “Spice Products”)[2] do not exceed the “safe harbor” exemption to Prop 65’s warning requirement for lead or arsenic, as the exposure to lead for any of the Spice Products is below 0.5 micrograms/day, and the exposure to inorganic arsenic is below 0.1 micrograms/day.[3] Defendants indicate that for lead, the 0.5 micrograms/day MADL for reproductive toxicity is lower than the 15 micrograms/day No Significant Risk Level (“NSRL”) for cancer. (Cal. Code Regs., tit. 27, 25705(b), 25805(b) 25705(b), 25805(b) 25705(b), 25805(b)SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_77","Original_string":" 25705(b), 25805(b)","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":11380,"Refers_To":null,"ShortText":" 25705","Start":11380,"Story":"wdMainTextStory"},"TOA":"","html":"

25705(b), 25805(b)

"}" id="601692842">25705(b), 25805(b)). For inorganic arsenic, a 0.1 micrograms/day MADL for reproductive toxicity is lower than the 10 micrograms/day NSRL for cancer. (Cal. Code Regs., tit. 27, 25709(b).) Defendants indicate that their motion thus “addresses the lower, more restrictive MADL for both chemicals.” and “[i]f Gel Spice establishes that each Spice Product is within the Safe Harbor for reproductive toxicity, it will have also demonstrated no warning is required for cancer.” (Mot. at p. 14:6-9.)

“Under California Code of Regulations, title 27 (Regulations)California Code of Regulations, title 27 (Regulations)California Code of Regulations, title 27 (Regulations)Full.CalCodeRegsciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_79","Original_string":"California Code of Regulations, title 27 (Regulations)","Page":null,"Parallel":null,"Pattern":"Full.CalCodeRegs","PinPage":null,"ReadOrderIndex":11854,"Refers_To":null,"ShortText":"California Code of Regulations, title 27","Start":11854,"Story":"wdMainTextStory"},"TOA":"","html":"

California Code of Regulations, title 27 (Regulations)

"}" id="-1750272992">California Code of Regulations, title 27, section 25821, subdivision (a)section 25821, subdivision (a)section 25821, subdivision (a)SectionOnlyciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_80","Original_string":"section 25821, subdivision (a)","Page":null,"Parallel":null,"Pattern":"SectionOnly","PinPage":null,"ReadOrderIndex":11910,"Refers_To":null,"ShortText":"section 25821, subdivision (a)","Start":11910,"Story":"wdMainTextStory"},"TOA":"","html":"

section 25821, subdivision (a)

"}" id="1056429028">section 25821, subdivision (a), [t]he procedures for calculating the exposure to a chemical in food start with the quantification of the chemical concentration of a listed chemical for the exposure in question. This concentration is called the level in question. The level in question is then multiplied by the reasonably anticipated rate of exposure for an individual to the food. This rate of exposure must be based on the pattern and duration of exposure that is relevant to the reproductive effect which formed the basis for listing the chemical as causing reproductive toxicity. Thus, an exposure of short duration is the appropriate frame of reference for a teratogenic chemical. A teratogen is a chemical that can cause birth defects.” ( PsychCase Full.CaseCitation 235 Cal. App. 4th 307 ","ParentCiteID":"CITRUS_BOOKMARK24","Processed":true,"Citation":{"current_string":"Environmental Law Foundation v. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312-313 [internal quotations and references to [Citation.] omitted]

"}" id="-236703272">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at pp. 312-313 [internal quotations and references to [Citation.] omitted].)

A. Application of the “Safe Harbor” Exemption for Lead

As to the level in question, Defendants’ expert Dr. Barbara J. Petersen indicates that in calculating the level of lead or inorganic arsenic (or total arsenic) in the Spice Products, she calculated the geometric mean and the arithmetic mean of the combined Defendant and Plaintiff data sets. (Petersen Decl., 24, Ex. B). Dr. Petersen prepared a spreadsheet identifying the average lead and arsenic content levels in parts per million for the relevant products, identified as both the arithmetic mean and geometric mean. (Petersen Decl., 24, 42, Ex. B). As to the “Correct quotation (No suggestions)","CitationText":"Id., 34-39","ModifiedCitationText":"Id., 34-39","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"reasonably%20anticipated%20rate%20of%20exposure,"}}}" id="-607573653">reasonably anticipated rate of exposure, Dr. Petersen indicates that to estimate the amount of each Spice Product consumed in an eating occasion, she used the National Health and Nutrition Examination Survey’s (“NHANES”) two-day 24-hour dietary recall study. (Petersen Decl., 29.) In addition, because the NHANES survey does not contain frequency data for spices, she obtained data from another national survey, the NPD Group’s NET (National Eating Trends), to characterize the consumption of the Spice Products. (Petersen Decl., 34.) Based on the NET data, Dr. Petersen generated the arithmetic and geometric mean of the long-term frequency of consumption of the Spice Products “(EO/day).” (Petersen Decl., 39, Ex. D.)

Dr. Petersen prepared a spreadsheet concerning the “estimated mean daily exposure to stated chemical from consumption of Products ( g/day).” (Petersen Decl., 43, Ex. E). Dr. Petersen determined that the average user’s calculated daily intake of lead from the consumption of each of the Spice Products range from 0.002 micrograms to 0.019 micrograms when calculated using the geometric mean and from 0.01 to 0.40 micrograms when calculated using the arithmetic mean, depending on the product in question. (Defendants’ Undisputed Material Fact (“UMF”) No. 28; Petersen Decl., 43, Ex. E.) Dr. Petersen determined that the “level of exposure” of lead for each of the Spice Products is below the 0.5 microgram/day warning threshold. (UMF No. 29). Defendants assert that accordingly, no Prop 65 warning is required. Based on the foregoing, the Court finds that Defendants have met their burden as to their “safe harbor” defense with regard to the alleged lead exposure.

In the opposition, Plaintiff submits the declaration of its expert, Dr. Paul Damian,

who asserts that the appropriate averaging time for lead exposure is one day, not a 30-day or

other long-term average. (Damian Decl., p. 6:17-18; Damian Decl., 27.) Dr. Damian indicates that “long-term averages are irrelevant and inappropriate when one is attempting to evaluate for, and protect against, the potential for short term (i.e. acute) developmental effects on the fetus, where very short (acute) exposures occurring over a day or a few days may be sufficient to produce adverse effects. Such averaging would mask potentially adverse spikes in lead exposure occurring on a given day or just a few days...adverse effects of lead on the neurologic development of the child can occur over much shorter exposure time frames than 30 days.” (Damian Decl., 14.) Dr. Damian cites to a California Attorney General letter dated March 3, 2008, providing that “[f]or a reproductive toxicant such as lead, the usage on a given day is considered the appropriate measure of exposure, not the long-term daily average.” (Damian Decl., 17.)[4]

Dr. Damian indicates that his “Table 1” shows the calculated daily intakes of lead associated with each of the Spice Products at issue, conservatively assuming a single serving of each spice is consumed on a given day of use and using Plaintiff’s lead concentrations. (Damian Decl., 28, Table 1.)[5] Table 1 shows that, for all the spices except one of the sage products (Spice Supreme), the lead MADL of 0.5 micrograms/day is exceeded based on a single serving of spice on a given day of use. (Damian Decl., 28, Table 1.) Dr. Damian indicates that this analysis conservatively assumes only a single serving of spice in a meal on a given day, and if only two servings were consumed on a single day, the “Spice Supreme” sage product would also exceed the lead MADL based on even the lowest lead concentration. (Ibid.)

Defendants contend that Plaintiff’s “day . . . exposure","SuggestionForQuote":"single day of exposure","CCSuggestionForQuote":" single day of exposure","CitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307","ModifiedCitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Environmental Law Foundation v. 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After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.” (Id. at p. 312.) “The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.” (Id. at p. 322.) The plaintiff appealed from the judgment, and the Court of Appeal affirmed. (Id. at p. 312.) "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"80","Name":"Psych_Cite_33","Range":{"$id":"81","ts":{"$ref":"77"},"_Start":800,"_End":813,"_Text":"Defendants contend that Plaintiffs “single day exposure” theory was rejected by the Court in Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307. 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"},"foundBy":null,"pattern":null,"tabName":null},{"$id":"82","Name":"Psych_Cite_34","Range":{"$id":"83","ts":{"$ref":"77"},"_Start":893,"_End":906,"_Text":"Defendants contend that Plaintiffs “single day exposure” theory was rejected by the Court in Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307. In Beech-Nut, the plaintiff alleged that “certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.” (Id. at p. 312.) “The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.” (Id. at p. 322.) 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307

"}" id="1332646348">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307. In Beech-Nut, the plaintiff alleged that “[fell] below relevant regulatory thresholds . ","QuotationType":"PhraseQuote","EditedQuotationText":"certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.”","MarkedQuotationText":"certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds [.] . . . ’","CCMarkedQuotationText":" certain of defendants ’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers . After a bench trial , the trial court entered judgment in favor of defendants , concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds [.] . . . ","SuggestionForQuote":"certain of defendants' products contain toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer's reasonably anticipated rate of exposure to lead from their products falls below relevant regulatory thresholds. ELF","CCSuggestionForQuote":" certain of defendants ' products contain toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers . After a bench trial , the trial court entered judgment in favor of defendants , concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer's reasonably anticipated rate of exposure to lead from their products falls below relevant regulatory thresholds .","CitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307","ModifiedCitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th 307, 312"],"IconIndicator":9,"UseCurrentIconIndicator":9,"UseCurrentMarkQuoteIconIndicator":9,"UseSuggestionIconIndicator":9,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":1,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":true,"SuggestionVisibility":true,"SuggestedDocUri":"certain%20of%20defendants%e2%80%99%20products%20contain[ed]%20toxic%20amounts%20of%20lead%20sufficient%20to%20trigger%20the%20duty%20to%20provide%20warnings%20to%20consumers.%20After%20a%20bench%20trial,%20the%20trial%20court%20entered%20judgment%20in%20favor%20of%20defendants,%20concluding%20they%20had%20no%20duty%20to%20warn%20because%20they%20satisfactorily%20demonstrated%20that%20the%20average%20consumer%e2%80%99s%20reasonably%20anticipated%20rate%20of%20exposure%20to%20lead%20from%20their%20products%20[fell]%20below%20relevant%20regulatory%20thresholds.%e2%80%9d"}}}" id="739914776">certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.” (Id. at p. 312Id. at p. 312Id. at p. 312IdciteReporter.Namecalapp4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_82","Original_string":"Id. at p. 312","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"312","ReadOrderIndex":18376,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":18377,"Story":"wdMainTextStory"},"TOA":"","html":"

Id. at p. 312

"}" id="-936211001">Id. at p. 312
.) “[plaintiff’s] analysis .","QuotationType":"SentenceQuote","EditedQuotationText":"The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.","MarkedQuotationText":"The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.","CCMarkedQuotationText":" The court found the expert testimony and analysis presented by defendants to be ‘ far more persuasive ’ than [plaintiff’s] analysis .","SuggestionForQuote":"Correct quotation (No suggestions)","CCSuggestionForQuote":"Correct quotation (No suggestions)","CitationText":"Id. at p. 322","ModifiedCitationText":"Id. at p. 322","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"The%20court%20found%20the%20expert%20testimony%20and%20analysis%20presented%20by%20defendants%20to%20be%20%e2%80%98far%20more%20persuasive%e2%80%99%20than%20[plaintiff%e2%80%99s]%20analysis."}}}" id="1688398222">The court found the expert testimony and analysis presented by defendants to be ‘far more persuasive’ than [plaintiff’s] analysis.” (Id. at p. 322Id. at p. 322Id. at p. 322IdciteReporter.Namecalapp4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_83","Original_string":"Id. at p. 322","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"322","ReadOrderIndex":18526,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":18527,"Story":"wdMainTextStory"},"TOA":"","html":"

Id. at p. 322

"}" id="-957569222">Id. at p. 322.)
The plaintiff appealed from the judgment, and the Court of Appeal affirmed. (Id. at p. 312Id. at p. 312Id. at p. 312IdciteReporter.Namecalapp4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_84","Original_string":"Id. at p. 312","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"312","ReadOrderIndex":18619,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":18620,"Story":"wdMainTextStory"},"TOA":"","html":"

Id. at p. 312

"}" id="-1137489652">Id. at p. 312
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“Correct quotation (No suggestions)","CitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 314","ModifiedCitationText":"Environmental Law Foundation v. 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The plaintiff claimed “the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed…all of defendants' toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. Thus, absent an underlying legal or scientific error, substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time.” (Id. at p. 327.) "}},"master":" RESULTS_36","kernel_data":"Id. at p. 314Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 314Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 314Short.ShortCaseCiteciteCaseNameEnvironmental Law Foundation v. Beech-Nut Nutrition Corp. 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Id. at p. 314

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The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted].) Moreover, the procedural posture of Beech-Nut is distinguishable, as discussed above. "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"98","Name":"Psych_Cite_40","Range":{"$id":"99","ts":{"$ref":"95"},"_Start":704,"_End":823,"_Text":"But as Plaintiff notes, the Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that a “single day exposure” analysis may never be used. The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted].) Moreover, the procedural posture of Beech-Nut is distinguishable, as discussed above. "},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"100","ts":{"$ref":"95"},"_Start":0,"_End":913,"_Text":"But as Plaintiff notes, the Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329

"}" id="-1205555500">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 314.) The trial court in Beech-Nut concluded, inter alia, that “[plaintiff’s] assertion that exposures to Defendants ' products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus .","QuotationType":"PhraseQuote","EditedQuotationText":"there was no scientific support for [plaintiff’s] assertion that exposures to Defendants' products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus.","MarkedQuotationText":"there was no scientific support for [plaintiff’s] assertion that . . . exposures to Defendants’ products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus.","CCMarkedQuotationText":" there was no scientific support for [plaintiff’s] assertion that . . . exposures to Defendants ’ products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus .","SuggestionForQuote":"there was no scientific support for ELF's assertion that “exposures to Defendants' products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus","CCSuggestionForQuote":" there was no scientific support for ELF's assertion that exposures to Defendants ' products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus","CitationText":"Id. at p. 327 [internal quotations omitted]","ModifiedCitationText":"Id. at p. 327 [internal quotations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"there%20was%20no%20scientific%20support%20for%20[plaintiff%e2%80%99s]%20assertion%20that%20exposures%20to%20Defendants'%20products%20on%20a%20single%20day%20would%20increase%20the%20blood%20lead%20level%20of%20pregnant%20women%20enough%20to%20cause%20a%20central%20nervous%20system%20deficit%20in%20the%20fetus."}}}" id="61917846">there was no scientific support for [plaintiff’s] assertion that exposures to Defendants’ products on a single day would increase the blood lead level of pregnant women enough to cause a central nervous system deficit in the fetus.” (Id. at p. 327 [internal quotations omitted]Id. at p. 327 [internal quotations omitted]Id. at p. 327 [internal quotations omitted]IdciteReporter.Namecalapp4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_86","Original_string":"Id. at p. 327 [internal quotations omitted]","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"327","ReadOrderIndex":19191,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":19192,"Story":"wdMainTextStory"},"TOA":"","html":"

Id. at p. 327 [internal quotations omitted]

"}" id="-1972275794">Id. at p. 327 [internal quotations omitted].) The plaintiff claimed “time
. ","QuotationType":"PhraseQuote","EditedQuotationText":"the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed…all of defendants' toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. 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","SuggestionForQuote":"the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed. As they admit, all of defendants' toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. Thus, absent an underlying legal or scientific error, substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time. Under","CCSuggestionForQuote":" the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed . As they admit , all of defendants ' toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure . Thus , absent an underlying legal or scientific error , substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time .","CitationText":"Id. at p. 327 [internal quotations omitted]","ModifiedCitationText":"Id. at p. 327 [internal quotations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"the%20trial%20court%20erred%20in%20interpreting%20the%20regulations%20so%20as%20to%20allow%20defendants%20to%20average%20the%20level%20of%20exposure%20over%20multiple%20days%20instead%20of%20evaluating%20the%20exposure%20on%20the%20day%20the%20food%20is%20actually%20consumed%e2%80%a6all%20of%20defendants'%20toxicology%20experts%20opined%20that%20the%20level%20of%20lead%20in%20the%20products%20at%c2%a0issue%20was%20insufficient%20to%20cause%20reproductive%c2%a0harm%20based%20on%20a%20single%20day%20of%20exposure.%20Thus,%20absent%20an%20underlying%20legal%20or%20scientific%20error,%20substantial%20evidence%20supports%20the%20conclusion%20that%20it%20was%20appropriate%20to%20evaluate%20the%20level%20of%20exposure%20over%20time.%e2%80%9d"}}}" id="503241198">the trial court erred in interpreting the regulations so as to allow defendants to average the level of exposure over multiple days instead of evaluating the exposure on the day the food is actually consumed.” (Ibid.) The Court of Appeal found that “all of defendants toxicology experts opined that the level of lead in the products at issue was insufficient to cause reproductive harm based on a single day of exposure. Thus, absent an underlying legal or scientific error, substantial evidence supports the conclusion that it was appropriate to evaluate the level of exposure over time.” ( PsychId Id 235 Cal. App. 4th 307 ","ParentCiteID":"Psych_Cite_37","Processed":true,"Citation":{"current_string":"Ibid.","original_string":"Id. at p. 327","error":null,"fullText":"Ibid.","refers_to_cite":null,"shortText":"235 Cal. 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Id. at p. 327

"}" id="-1047224033">Ibid.Ibid.Ibid.IdciteReporter.Namecalapp4thReporter.Volume235Reporter.FirstPage307Reporter. PinPages.First312","Markup":null,"Master":"","name":"Psych_Cite_87","Original_string":"Ibid.","Page":null,"Parallel":null,"Pattern":"Id","PinPage":"327","ReadOrderIndex":19810,"Refers_To":null,"ShortText":"235 Cal. App. 4th 307","Start":19811,"Story":"wdMainTextStory"},"TOA":"","html":"

Ibid.

"}" id="1173149011">Ibid.)

But as Plaintiff notes, the Beech-Nut Court concluded that “Correct quotation (No suggestions)","CitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329","ModifiedCitationText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":8,"UseCurrentIconIndicator":8,"UseCurrentMarkQuoteIconIndicator":0,"UseSuggestionIconIndicator":8,"IsEnabled":false,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":true,"ShowPinPointPage":false,"SuggestionVisibility":false,"SuggestedDocUri":"[i]n%20sum,%20on%20the%20record%20here,%20we%20cannot%20conclude%20that%20the%20trial%20court%20erred%20in%20accepting%20defendants%e2%80%99%20experts%e2%80%99%20opinions%20that%20the%20products%20qualify%20for%20the%20exemption%20under%20the%20safe%20harbor%20defense%20of%c2%a0Regulation%2025801,%20subdivision%20(b)(2)."}}}" id="-1489710651">[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” ( PsychCase Full.CaseCitation 235 Cal. App. 4th 307 ","ParentCiteID":"CITRUS_BOOKMARK38","Processed":true,"Citation":{"current_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329","original_string":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329","error":null,"fullText":"Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329","refers_to_cite":null,"shortText":"235 Cal. App. 4th 307","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":20045,"end":20134,"pattern":"Full.CaseCitation","readOrderIndex":20110,"index":20045,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:5FFR-7MY1-J9X5-T3DX-00000-00","story":"wdMainTextStory","PinPage":"329","name":"CITRUS_BOOKMARK39","foundBy":"PsychCase","FullTextParen":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"95","End":913,"Offset":19749,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"96","Name":"Psych_Cite_39","Range":{"$id":"97","ts":{"$ref":"95"},"_Start":296,"_End":385,"_Text":"But as Plaintiff notes, the Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that a “single day exposure” analysis may never be used. The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted].) Moreover, the procedural posture of Beech-Nut is distinguishable, as discussed above. "},"foundBy":null,"pattern":null,"tabName":null},{"$id":"98","Name":"Psych_Cite_40","Range":{"$id":"99","ts":{"$ref":"95"},"_Start":704,"_End":823,"_Text":"But as Plaintiff notes, the Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that a “single day exposure” analysis may never be used. The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted].) Moreover, the procedural posture of Beech-Nut is distinguishable, as discussed above. "},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"100","ts":{"$ref":"95"},"_Start":0,"_End":913,"_Text":"But as Plaintiff notes, the Beech-Nut Court concluded that “[i]n sum, on the record here, we cannot conclude that the trial court erred in accepting defendants’ experts’ opinions that the products qualify for the exemption under the safe harbor defense of Regulation 25801, subdivision (b)(2).” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that a “single day exposure” analysis may never be used. The Beech-Nut Court noted that “Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted].) Moreover, the procedural posture of Beech-Nut is distinguishable, as discussed above. "}},"master":" RESULTS_36","kernel_data":"Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329Short.ShortCaseCiteciteCaseNameEnvironmental Law Foundation v. Beech-Nut Nutrition Corp. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 329

"}" id="810134158">Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 329, emphasis added.) The Court does not find that Beech-Nut stands for the proposition that a “day . . . exposure","SuggestionForQuote":"single day of exposure","CCSuggestionForQuote":" single day of exposure","CitationText":"Id. at p. 328 [internal quotations omitted]","ModifiedCitationText":"Id. at p. 328 [internal quotations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Id. at p. 327 [internal quotations omitted]"],"IconIndicator":9,"UseCurrentIconIndicator":9,"UseCurrentMarkQuoteIconIndicator":9,"UseSuggestionIconIndicator":9,"IsEnabled":true,"IsUserConfirmed":false,"SuggestionCount":1,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":true,"SuggestionVisibility":true,"SuggestedDocUri":"single%20day%20exposure"}}}" id="-1262135702">single day exposure” analysis may never be used. The Beech-Nut Court noted that 65 . . . envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented .","SuggestionForQuote":"Proposition 65 “envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented","CCSuggestionForQuote":" Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented","CitationText":"Id. at p. 328 [internal quotations omitted]","ModifiedCitationText":"Id. at p. 328 [internal quotations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"Proposition%2065%20envisions%20a%20case-by-case%20approach%20which%20takes%20into%20account%20the%20totality%20of%20the%20quantitative%20risk%20assessment%20evidence%20presented."}}}" id="-184447002">Proposition 65 envisions a case-by-case approach which takes into account the totality of the quantitative risk assessment evidence presented.” ( PsychCase Full.CaseCitation 235 Cal. 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Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 328 [internal quotations omitted]

"}" id="1036701173">Id. at p. 328 [internal quotations omitted].)[6]

Defendants also cite to multiple new declarations in support of their reply. For instance, Defendants cite to the reply declarations of Barbara J. Petersen and Leila M. Barraj to support the assertion that Dr. Damian’s first assessment is insufficient. (See Reply at p. 10:4-20.) As set forth above, “practice . . . is that new evidence is not permitted with reply papers . This principle is most prominent in the context of summary judgment motions . . . [p]oints raised for the first time in a reply brief will ordinarily not be considered , because such consideration would deprive the respondent of an opportunity to counter the argument .","SuggestionForQuote":"The general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions, which is not surprising, given that it is a common evidentiary motion. “[T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . ” and if permitted, the other party should be given the opportunity to respond. (Plenger v. Alza Corp. (1992) 11 Cal.App.4th 349, 362, fn. 8 [13 Cal. Rptr. 2d 811]; see Nazir v. United Airlines, Inc. (2009) 178 Cal.App.4th 243, 252 [100 Cal. Rptr. 3d 296]; San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002) 102 Cal.App.4th 308, 316 [125 Cal. Rptr. 2d 499].) The same rule has been noted in other contexts as well. (Alliant Ins. Services, Inc. v. Gaddy (2008) 159 Cal.App.4th 1292, 1308 [72 Cal. Rptr. 3d 259] [in preliminary injunction proceeding, “the trial court had discretion whether to accept new evidence with the reply papers”].) This rule is based on the same solid logic applied in the appellate courts, specifically, that “[p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument","CCSuggestionForQuote":" The general rule of motion practice , which applies here , is that new evidence is not permitted with reply papers . This principle is most prominent in the context of summary judgment motions , which is not surprising , given that it is a common evidentiary motion . [T]he inclusion of additional evidentiary matter with the reply should only be allowed in the exceptional case . . . and if permitted , the other party should be given the opportunity to respond . ( Plenger v . Alza Corp . ( 1992 ) 11 Cal . App . 4th 349 , 362 , fn . 8 [ 13 Cal . Rptr . 2d 811 ] ; see Nazir v . United Airlines , Inc . ( 2009 ) 178 Cal . App . 4th 243 , 252 [ 100 Cal . Rptr . 3d 296 ] ; San Diego Watercrafts , Inc . v . Wells Fargo Bank ( 2002 ) 102 Cal . App . 4th 308 , 316 [ 125 Cal . Rptr . 2d 499 ] . ) The same rule has been noted in other contexts as well . ( Alliant Ins . Services , Inc . v . Gaddy ( 2008 ) 159 Cal . App . 4th 1292 , 1308 [ 72 Cal . Rptr . 3d 259 ] [ in preliminary injunction proceeding , the trial court had discretion whether to accept new evidence with the reply papers ] . ) This rule is based on the same solid logic applied in the appellate courts , specifically , that [p]oints raised for the first time in a reply brief will ordinarily not be considered , because such consideration would deprive the respondent of an opportunity to counter the argument","CitationText":"Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]","ModifiedCitationText":"Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":10,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"[t]he%20general%20rule%20of%20motion%20practice%e2%80%a6is%20that%20new%20evidence%20is%20not%20permitted%20with%20reply%20papers.%c2%a0This%20principle%20is%20most%20prominent%20in%20the%20context%20of%20summary%20judgment%20motions%e2%80%a6%20[p]oints%20raised%20for%c2%a0the%20first%20time%20in%20a%20reply%20brief%20will%20ordinarily%20not%20be%20considered,%20because%20such%20consideration%20would%20deprive%20the%20respondent%20of%20an%20opportunity%20to%20counter%20the%20argument."}}}" id="82345430">[t]he general rule of motion practice…is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions… [p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument. ( PsychCase Full.CaseCitation 218 Cal. App. 4th 1522 ","ParentCiteID":"Psych_Cite_2","Processed":true,"Citation":{"current_string":"Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]","original_string":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [internal quotations omitted]","error":null,"fullText":"Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]","refers_to_cite":null,"shortText":"218 Cal. App. 4th 1522","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":22669,"end":22753,"pattern":"Full.CaseCitation","readOrderIndex":22692,"index":22669,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:595V-TYS1-DXC8-731N-00000-00","story":"wdMainTextStory","PinPage":"1537","name":"CITRUS_BOOKMARK43","foundBy":"PsychCase","FullTextParen":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522","ParentheticalType":null,"IntermediateCite":false,"TOAHeading":null,"ts":{"$id":"107","End":1751,"Offset":21949,"Start":0,"nref":0,"nind":0,"story":"wdMainTextStory","namedRanges":[{"$id":"108","Name":"Psych_Cite_43","Range":{"$id":"109","ts":{"$ref":"107"},"_Start":720,"_End":804,"_Text":"The Court also notes that Defendants cite to multiple new declarations for the first time in support of arguments made in the reply. As an example, Plaintiff cites to the declarations of Barbara J. Petersen, Leila M. Barraj, Dennis E. Raglin in Support of the Reply to support the assertion that Dr. Damien’s assessments are insufficient. As set forth above, “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions… [p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [internal quotations omitted].) In addition, Plaintiff’s expert Stacia DeSantis asserts that the NHANES survey (relied upon by Defendants’ expert as discussed above) has limitations in estimating spice intake and frequency. (DeSantis Decl., 7.) Dr. DeSantis indicates that NHANES does not ask participants about spice intake on its “Food Frequency Questionnaire,” but instead directs the respondent to not add spices to the foods recalled over the 2-day dietary collection period. (DeSantis Decl., 7.) Dr. DeSantis also asserts that peer-reviewed research demonstrates food “diaries” like NPD NET do no correlate well with spice intake, and specifically, that food diaries significantly underestimate spice intake. (DeSantis Decl., 13.) Dr. DeSantis also asserts that although ground cloves, sage, and poultry seasoning are not collected in NHANES, Defendants’ experts have used NHANES to estimate consumption and “EO/day” for these spices. (DeSantis Decl., 32.) "},"foundBy":null,"pattern":null,"tabName":null}],"Range":{"$id":"110","ts":{"$ref":"107"},"_Start":0,"_End":1751,"_Text":"The Court also notes that Defendants cite to multiple new declarations for the first time in support of arguments made in the reply. As an example, Plaintiff cites to the declarations of Barbara J. Petersen, Leila M. Barraj, Dennis E. Raglin in Support of the Reply to support the assertion that Dr. Damien’s assessments are insufficient. As set forth above, “[t]he general rule of motion practice…is that new evidence is not permitted with reply papers. This principle is most prominent in the context of summary judgment motions… [p]oints raised for the first time in a reply brief will ordinarily not be considered, because such consideration would deprive the respondent of an opportunity to counter the argument.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [internal quotations omitted].) In addition, Plaintiff’s expert Stacia DeSantis asserts that the NHANES survey (relied upon by Defendants’ expert as discussed above) has limitations in estimating spice intake and frequency. (DeSantis Decl., 7.) Dr. DeSantis indicates that NHANES does not ask participants about spice intake on its “Food Frequency Questionnaire,” but instead directs the respondent to not add spices to the foods recalled over the 2-day dietary collection period. (DeSantis Decl., 7.) Dr. DeSantis also asserts that peer-reviewed research demonstrates food “diaries” like NPD NET do no correlate well with spice intake, and specifically, that food diaries significantly underestimate spice intake. (DeSantis Decl., 13.) Dr. DeSantis also asserts that although ground cloves, sage, and poultry seasoning are not collected in NHANES, Defendants’ experts have used NHANES to estimate consumption and “EO/day” for these spices. (DeSantis Decl., 32.) "}},"master":" RESULTS_6","kernel_data":"Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [internal quotations omitted]Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]Jay v. Mahaffey, supra, at pp. 1537-1538 [internal quotations omitted]Short.ShortCaseCiteciteCaseNameJay v. Mahaffey CaseName._PatternCaseName.CaseNameCaseName.FirstPartyJay CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyJayCaseName.SecondPartyMahaffey CaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyMahaffeyCaseName.vv.CourtParenthetical (2013) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2013 CourtParenthetical.Date._PatternDate.DateCourtParenthetical.Date.Year2013 CourtParenthetical.Date.Year._PatternYear.YearCourtParenthetical.Date.Year.Year2013CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyJay HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Parenthetical [internal quotations omitted] Parenthetical.([ [Parenthetical.([.[[Parenthetical.([._Pattern([.([Parenthetical.])] Parenthetical.]).]]Parenthetical.])._Pattern]).])Parenthetical. 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Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537-1538 [internal quotations omitted]

"}" id="-1535577919">Jay v. Mahaffey, supra, 218 Cal.App.4th at pp. 1537-1538 [internal quotations omitted].) The Court also notes that “[o]n a summary judgment motion, the court must…consider what inferences favoring the opposing party a fact finder could reasonably draw from the evidence. While viewing the evidence in this manner, the court must bear in mind that its primary function is to identify issues rather than to determine issues.” (Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839.) “credibility . ","QuotationType":"SentenceQuote","EditedQuotationText":"The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.”","MarkedQuotationText":"The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true . . . . . . . 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Practice Guide : Civil Procedure Before Trial , supra , P 10 : 272 , pp . 10 - 105 to 10 - 106 . ) Nor may the trial court grant summary judgment based on the court's evaluation of credibility .","CitationText":"Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [internal quotations, citations, and emphasis omitted]","ModifiedCitationText":"Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 839 [internal quotations, citations, and emphasis omitted]","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":["Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [internal quotations, citations, and emphasis omitted]"],"IconIndicator":9,"UseCurrentIconIndicator":9,"UseCurrentMarkQuoteIconIndicator":9,"UseSuggestionIconIndicator":9,"IsEnabled":true,"IsUserConfirmed":true,"SuggestionCount":1,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":true,"SuggestionVisibility":true,"SuggestedDocUri":"The%20trial%20court%20may%20not%20weigh%20the%20evidence%20in%20the%20manner%20of%20a%20fact%20finder%20to%20determine%20whose%20version%20is%20more%20likely%20true.%20Nor%20may%20the%20trial%20court%20grant%20summary%20judgment%20based%20on%20the%20court%e2%80%99s%20evaluation%20of%20credibility.%e2%80%9d"}}}" id="-1959337453">The trial court may not weigh the evidence in the manner of a fact finder to determine whose version is more likely true. Nor may the trial court grant summary judgment based on the court’s evaluation of credibility.” ( PsychCase Full.CaseCitation 75 Cal. App. 4th 832 ","ParentCiteID":"Psych_Cite_41","Processed":true,"Citation":{"current_string":"Id. at p. 840 [internal citations omitted]","original_string":"Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [internal citations omitted]","error":null,"fullText":"Id. at p. 840 [internal citations omitted]","refers_to_cite":null,"shortText":"75 Cal. App. 4th 832","isParallel":false,"parallel":"","legistlativeHistory":null,"isLegislativeHistory":false,"start":21691,"end":21780,"pattern":"Full.CaseCitation","readOrderIndex":21728,"index":21691,"citeType":1,"CiteShepSignal":2,"CiteShepSignalLink":"https: advance.lexis.com/api/shepards?context=1000516&id=urn:contentItem:7XWN-03B1-2NSF-C0VN-00000-00","story":"wdMainTextStory","PinPage":"840","name":"CITRUS_BOOKMARK42","foundBy":"PsychCase","FullTextParen":"Binder v. Aetna Life Ins. Co. 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Binder v. Aetna Life Ins. Co. (1999) 75 Cal.App.4th 832, 840 [internal citations omitted]

"}" id="-2143876313">Id. at p. 840 [internal citations omitted].)

In addition to Dr. Damian’s assessment discussed above, Plaintiff also asserts that Defendants’ analysis ignores actual users of the Spice Products. Plaintiff notes that pursuant to California Code of Regulations, title 27, section 25721, subdCalifornia Code of Regulations, title 27, section 25721, subdCalifornia Code of Regulations, title 27, section 25721, subdFull.CalCodeRegsciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_94","Original_string":"California Code of Regulations, title 27, section 25721, subd","Page":null,"Parallel":null,"Pattern":"Full.CalCodeRegs","PinPage":null,"ReadOrderIndex":23763,"Refers_To":null,"ShortText":"California Code of Regulations, title 27, section 25721","Start":23763,"Story":"wdMainTextStory"},"TOA":"","html":"

California Code of Regulations, title 27, section 25721, subd

"}" id="1658034716">California Code of Regulations, title 27, section 25721, subdivision (d)(2), “cancer , unless more specific and scientifically appropriate data are available : . . . ( 2 ) For an exposure reasonably anticipated to affect a certain subpopulation of the general population in any geographic area , specific data ( if available ) relating to that subpopulation shall be used to determine the level of exposure .","QuotationType":"PhraseQuote","EditedQuotationText":"[t]he following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing cancer, unless more specific and scientifically appropriate data are available:…(2) For an exposure reasonably anticipated to affect a certain subpopulation of the general population in any geographic area, specific data (if available) relating to that subpopulation shall be used to determine the level of exposure.","MarkedQuotationText":"[t]he following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing [cancer] , unless more specific and scientifically appropriate data are available [:(2] ) [For an exposure reasonably anticipated to affect a certain subpopulation of t]he [general population] in [any geographic area, specific data] ( [if available] ) [relating to that subpopulation] shall be used to [determine] the [level] of exposure.","CCMarkedQuotationText":" [t]he following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing [cancer] , unless more specific and scientifically appropriate data are available [ : ( 2] ) [ For an exposure reasonably anticipated to affect a certain subpopulation of t]he [general population] in [ any geographic area , specific data] ( [ if available] ) [ relating to that subpopulation] shall be used to [determine] the [level] of exposure .","SuggestionForQuote":"The following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available: (1) The assumptions set forth in subsection (d) of Section 25721 shall be used to calculate the reasonably anticipated rate of exposure","CCSuggestionForQuote":" The following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity , unless more specific and scientifically appropriate data are available : ( 1 ) The assumptions set forth in subsection ( d ) of Section 25721 shall be used to calculate the reasonably anticipated rate of exposure","CitationText":"California Code of Regulations, title 27, section 25821, subd","ModifiedCitationText":"California Code of Regulations, title 27, section 25821, subd","IsUseMyText":true,"IsMarkMyText":false,"IsEditMyText":false,"SuggestionForCitation":[],"IconIndicator":9,"UseCurrentIconIndicator":10,"UseCurrentMarkQuoteIconIndicator":8,"UseSuggestionIconIndicator":8,"IsEnabled":true,"IsUserConfirmed":false,"SuggestionCount":0,"IsManagedCite":false,"PinpointPageText":"View suggested pinpoint page","IsViewPinpointPage":true,"IsCorrect":false,"ShowPinPointPage":false,"SuggestionVisibility":true,"SuggestedDocUri":"[t]he%20following%20assumptions%20shall%20be%20used%20to%20calculate%20the%20reasonably%20anticipated%20rate%20of%20exposure%20to%20a%20chemical%20listed%20as%20causing%20cancer,%20unless%20more%20specific%20and%20scientifically%20appropriate%20data%20are%20available:%e2%80%a6(2)%c2%a0For%20an%20exposure%20reasonably%20anticipated%20to%20affect%20a%20certain%20subpopulation%20of%20the%20general%20population%20in%20any%20geographic%20area,%20specific%20data%20(if%20available)%20relating%20to%20that%20subpopulation%20shall%20be%20used%20to%20determine%20the%20level%20of%20exposure."}}}" id="-378465851">[t]he following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing cancer, unless more specific and scientifically appropriate data are available:…(2) For an exposure reasonably anticipated to affect a certain subpopulation of the general population in any geographic area, specific data (if available) relating to that subpopulation shall be used to determine the level of exposure.In addition, pursuant to California Code of Regulations, title 27, section 25821, subdCalifornia Code of Regulations, title 27, section 25821, subdCalifornia Code of Regulations, title 27, section 25821, subdFull.CalCodeRegsciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_95","Original_string":"California Code of Regulations, title 27, section 25821, subd","Page":null,"Parallel":null,"Pattern":"Full.CalCodeRegs","PinPage":null,"ReadOrderIndex":24315,"Refers_To":null,"ShortText":"California Code of Regulations, title 27, section 25821","Start":24315,"Story":"wdMainTextStory"},"TOA":"","html":"

California Code of Regulations, title 27, section 25821, subd

"}" id="-857341891">California Code of Regulations, title 27, section 25821, subdivision (c)(1), “
[t]he assumptions set forth in subsection (d) of Section 25721Section 25721Section 25721Full.CalCodeRegsciteReporter.Name","Markup":null,"Master":"","name":"Psych_Cite_96","Original_string":"Section 25721","Page":null,"Parallel":null,"Pattern":"Full.CalCodeRegs","PinPage":null,"ReadOrderIndex":24442,"Refers_To":null,"ShortText":"California Code of Regulations, title 27, section 25721","Start":24442,"Story":"wdMainTextStory"},"TOA":"","html":"

Section 25721

"}" id="-179818065">Section 25721 shall be used to calculate the reasonably anticipated rate

of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available.” Plaintiff indicates that based on a survey of South Asian and Middle Eastern consumers in Los Angeles County, 95.6% of these individuals consumed turmeric and 91% consumed it 4 or more times per week. (Meneses Decl. 4, Ex. B.) Defendants note that this point only addresses turmeric, not the other spices at issue in this case.[7] In any event, Plaintiff’s subpopulations argument is only one of several arguments raised by Plaintiff in support of its assertion that there are multiple triable issues of material fact.

Based on the foregoing, the Court finds that Plaintiff has presented sufficient evidence to raise a triable issue of material fact as to whether levels of lead in the subject Spice Products fall within Prop 65’s regulatory “safe harbor.”

B. Application of the “Safe Harbor” Exemption for Arsenic

Defendants indicate that for arsenic exposure from sage, Dr. Petersen used the same methodology used for lead. (Petersen Decl., 40-42). Dr. Petersen determined that the average user’s calculated daily intake of inorganic arsenic from the consumption of the ground sage product is 0.002 micrograms when calculated using the geometric mean and 0.02 micrograms when calculated using the arithmetic mean. (Petersen Decl., 43, Ex. E.) Dr. Petersen indicates that while she relied upon the combined Defendant and Plaintiff data for her conclusions, Plaintiff’s data alone also demonstrate an exposure well below the regulatory safe harbor levels for inorganic arsenic in ground sage. (Petersen Decl., 43.) Based on the foregoing, the Court finds that Defendants have met their burden as to their “safe harbor” defense with regard to the alleged arsenic exposure.

In the opposition, Plaintiff’s expert, Dr. Damian, indicates that the appropriate averaging time for inorganic arsenic exposure is one day, not a 30-day or other long-term average. (Damian Decl., p. 20:16-17.) Dr. Damian indicates that “[i]norganic arsenic has been extensively studied as a teratogen in animals. Data from animal studies demonstrate that arsenic can produce developmental toxicity, including malformation, death, and growth retardation, in four species (hamsters, mice, rats, rabbits). A characteristic pattern of malformations is produced, and the developmental toxicity effects are dependent on dose, route, and the day of gestation when exposure occurs.” (Damian Decl., 41.) He thus asserts that because inorganic arsenic is a teratogen, a multi-day averaging time is not appropriate and the exposure occurring on a given day of use of the product is the correct basis for evaluating compliance. (Damian Decl., 44.) Dr. Damian’s Table 1 shows the inorganic arsenic intake based on a single serving of the subject sage product (the only product at issue with regards to inorganic arsenic). (Damian Decl., 44, Table 1.) Dr. Damian’s calculations resulted in an inorganic arsenic intake of 0.26 micrograms/day. (Damian Decl., 45, Table 1.)[8]

Based on the foregoing, the Court finds that Plaintiff has presented sufficient evidence to raise a triable issue of material fact as to whether levels of inorganic arsenic in the subject sage product fall within Prop 65’s regulatory “safe harbor.”

C. Toxicology and Physiologically-Based Pharmacokinetic Modeling

Defendants also assert that the Spice Products do not require a lead warning, as demonstrated byphysiologically-based pharmacokinetic” (“PBPK”) modeling.

Defendants’ expert, Dr. Barbara Beck, indicates that lead modeling has been used for many years to quantify the impact of lead intake on blood lead, bone lead, and other tissues in the body to assess risks from lead exposure, and to set permissible levels for lead in environmental media, including food, water, air, and soil. (Beck Decl., 39.)

Dr. Beck indicates that “modeling was performed for a 25 year old male with a baseline lead intake of 0 [micrograms]/day to compare the impact on blood lead and bone lead of the actual consumption amounts and frequencies for the seven products at issue compared to daily consumption at the [sic] of 0.5 [micrograms] MADL. In every instance, the impact on blood lead and bone lead from the actual consumption patterns and amounts of the products is less than the impact from daily consumption of the 0.5 [micrograms] MADL. Because blood lead model results are generally similar for females as for males, and potential reproductive effects are associated with higher blood lead levels in females than in males, my conclusion is also applicable to females.” (Beck Decl., 53.) Dr. Beck indicates that “[c]onsidering that even a one-time exposure event could result in some lead storage in bone for long durations, with slow release of lead into the blood over time via resorption, it would be appropriate to evaluate lead exposure (in terms of resulting blood lead level) over a longer period of time such as 30 days or more.” (Beck Decl., 28.)

Dr. Beck also indicates that she “conducted two separate analyses based on 1) the arithmetic average mass of inorganic arsenic per serving and arithmetic average frequency of consumption (based on the NPD Group/Historical National Eating Trends Survey data), and 2) the geometric average mass of inorganic arsenic per serving and geometric average frequency of consumption.” (Beck Decl., 72.) She indicates that for each analysis, the average daily intake of inorganic arsenic fell below 0.1 [micrograms]/day. (Beck Decl., 73, Ex. 8.)

In the opposition, Plaintiff asserts that Defendants’ blood level modeling is inappropriate to rely upon when evaluating the alleged Prop 65 violations in this matter. Plaintiff’s expert, Gagik Melikyan, indicates that Dr. Beck’s declaration is heavily based on lead blood level modeling in human bodies called All-Ages Lead Model, or AALM. (Melikyan Decl., 47.) Dr. Melikyan asserts that modeling has never been a substitute for reliable experimental studies, and results derived from modeling of any type are only predictions, and not scientific facts. (Melikyan Decl., 47.) Dr. Melikyan also asserts that in the modeling studies, Dr. Beck is using the concept of “exposure frequency” or “intake frequency” that is analogous to the concept of Eating Occasion (“EO”); and that the “EO” concept for assessment purposes is scientifically inaccurate and ignores the published data on metabolism of lead in human bodies. (Melikyan Decl., 52.) Defendants cite to new evidence in support of the reply to challenge Dr. Melikyan’s declaration. As set forth above, the general rule of motion practice is that new evidence is not permitted with reply papers. ( PsychCase Short.ShortCaseCite 218 Cal. App. 4th 1522 ","ParentCiteID":"CITRUS_BOOKMARK43","Processed":true,"Citation":{"current_string":"Jay v. Mahaffey, supra, 218 Cal.App.4th at p. 1537","original_string":"Jay v. Mahaffey, supra, 218 Cal.App.4th 1522, 1537","error":null,"fullText":"Jay v. Mahaffey, supra, 218 Cal.App.4th at p. 1537","refers_to_cite":null,"shortText":"218 Cal. 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KamalaCaseName.FirstPartyJay CaseName.FirstParty._PatternParty.PartyCaseName.FirstParty.PartyJayCaseName.SecondPartyMahaffey CaseName.SecondParty._PatternParty.PartyCaseName.SecondParty.PartyMahaffeyCaseName.vv.CourtParenthetical (2013) CourtParenthetical._PatternCourtParenthetical.CourtParentheticalCourtParenthetical.Date2013 CourtParenthetical.Date._PatternCourtParenthetical.Date.DateCourtParenthetical.Date.Year2013 CourtParenthetical.Date.Year._PatternCourtParenthetical.Date.Year.YearCourtParenthetical.Date.Year.Year2013CourtParenthetical.ForbiddenComma._PatternForbiddenComma.ForbiddenCommaCourtParenthetical.Switch ( [ L (CourtParenthetical.Switch ( [ L.((CourtParenthetical.Switch ( [ L._PatternSwitch ( [ L.Switch ( [ LCourtParenthetical.Switch ) ] R) CourtParenthetical.Switch ) ] R.))CourtParenthetical.Switch ) ] R._PatternSwitch ) ] R.Switch ) ] RFirstPartyJay HAS_AUTHORITATIVE_DATAYESNY L Paren(NY R Paren)Parenthetical [internal quotations omitted] Parenthetical.([ [Parenthetical.])] Reporter218 Cal.App.4th 1522, 1537Reporter.[[Reporter.]]Reporter. 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Jay v. Mahaffey, supra, 218 Cal.App.4th 1522, 1537

"}" id="-1694380722">Jay v. Mahaffey, supra, 218 Cal.App.4th at p. 1537.)

In addition, Plaintiff’s expert, Dr. Damian, asserts that blood lead modeling is not relevant for evaluating Prop 65 compliance. (Damian Decl., p. 3:8.) He asserts that the “measure of compliance with PROP65 is not based on the resulting blood level of the chemical but on the intake of the chemical. In the case of a chemical that is ingested, intake is simply the amount consumed, NOT the amount that actually enters the blood.” (Damian Decl., 3.)

In light of the foregoing, the Court finds that Plaintiff has presented sufficient evidence to raise a triable issue of material fact as to whether levels of lead and arsenic in the subject Spice Products fall within Prop 65’s regulatory “safe harbor.”

Conclusion

For the foregoing reasons, Defendants’ motion for summary judgment or in the alternative, summary adjudication, is denied.

Defendants are ordered to provide notice of this ruling.

DATED: October 3, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1]The Court notes that Plaintiff includes in the joint statement a number of “remaining objections” as to the “legal” motion for summary judgment. The Court’s February 1, 2022 Order regarding the instant phase two motion on statutory affirmative defenses on the merits provides, inter alia, “[i]if any material objections remain unresolved, the parties are to set them forth in a joint statement…” The February 1, 2022 Order only concerned the instant “merits” motion. Thus, the Court disregards Plaintiff’s evidentiary objections pertaining to the “legal” motion for summary judgment.

[2]As discussed above, Plaintiff alleges that Defendants violated Prop 65 with respect to the following spices: ground cinnamon, ground cumin, ground sage, ground cloves, poultry seasoning, garlic powder, and ground turmeric.

[3]Defendants indicate that OEHHA developed, but never adopted, a Maximum Allowable Dose Level (“MADL”) of 0.1 micrograms/day for inorganic arsenic. (Beck Decl., 57.) Plaintiff asserts that “OEHHA has not calculated an MADL, but Dr. Damian [Plaintiff’s expert] has calculated an MADL of 0.01 [micrograms]/day for reproductive toxicity…Defendants calculate an MADL for arsenic of 0.1 [micrograms]/day.” (Opp’n at p. 11:20-22.)

[4] In addition, Plaintiff’s expert Stacia DeSantis asserts that peer-reviewed research demonstrates that food “diaries” like NPD NET (used by Defendants’ expert) do no correlate well with spice intake, and specifically, that food diaries significantly underestimate spice intake. (DeSantis Decl., 13.)

[5]Dr. Damian indicates that a single serving of teaspoon was assumed for the serving size, and that this is the amount of spice considered to represent a typical serving size (amount consumed per eating occasion) by the Food and Drug Administration. (Damian Decl., 28.)

[6]In addition, in Beech-Nut, the parties “agreed that the ‘window of susceptibility for exposure to lead’ shall mean the period of time during which exposure may cause a reproductive, including developmental, effect,” and the plaintiff’s expert “admitted he had not seen epidemiological literature that identified a window of susceptibility as an interval shorter than either eight weeks or a single trimester.” (Environmental Law Foundation v. Beech-Nut Nutrition Corp., supra, 235 Cal.App.4th at p. 319.)

[7]In addition, Defendants assert in the reply that Plaintiff’s ethnic subpopulation theory is inconsistent with Prop 65 regulations. As set forth in the Court’s June 16, 2022 Order, Defendants previously moved for an order finding that (1) 27 Cal. Code Regs. 25821(c)(2) governs the food exposure at issue; (2) 27 Cal Code Regs. 25721(d)(2) does not apply to food exposure; and (3) 27 Cal. Code Regs. 25721(d)(2)’s use of the phrase “certain subpopulations in a geographic area” does not support using ethnic subpopulations for exposure assessments either under sections 25721(d)(2) and 25821(c)(2), or any other Prop 65 regulation. For the reasons set forth in the June 16, 2022 Order, Defendants’ motion was denied.

[8]Dr. Damian indicates that “[a]lthough OEHHA has not promulgated an MADL for inorganic arsenic, I

have developed an MADL of 0.01 [micrograms]/day using the same procedures required in the PROP65 regulations.” (Damian Decl., 45.) In an event, the amount of 0.26 micrograms/day exceeds the 0.1 micrograms/day “safe harbor” level for inorganic arsenic used by Defendants in the motion.



Case Number: ****5798 Hearing Date: June 16, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

consumer advocacy group, inc., et al.,

Plaintiff,

vs.

gel spice company, inc., et al.

Defendants.

Case No.:

****5798 [c/w 19STCV24048]

Hearing Date:

June 16, 2022

Hearing Time:

10:00 a.m.

[TENTATIVE] ORDER RE:

MOTION OF DEFENDANTS GEL SPICE CO., INC., BIG LOTS STORES, INC., GROCERY OUTLET, INC. AND TARGET CORPORATION’S FOR AN ORDER DETERMINING APPLICABILITY OF 27

CCR 25821(C)(2) AND 25721(D)(2)

Background

Plaintiff Consumer Advocacy Group, Inc. (“Plaintiff”) filed this Proposition 65 (“Prop 65”) action on June 20, 2017. The operative Second Amended Complaint (“SAC”) was filed on January 19, 2021, alleging that various defendants exposed California consumers to lead without Proposition 65 warnings through the manufacture and sale of certain food products (spices). This action was later consolidated with Consumer Advocacy Group, Inc. v. Viva Bargain Center, Inc. (Case No. 19STCV24048), in which the chemicals at issue were lead and arsenic.

Defendants Gel Spice Company, Inc., Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) now move for an order finding that (1) 27 Cal. Code Regs. 25821(c)(2) governs the food exposure at issue; (2) 27 Cal Code Regs. 25721(d)(2) does not apply to food exposure; and (3) 27 Cal. Code Regs. 25721(d)(2)’s use of the phrase “certain subpopulations in a geographic area” does support using ethnic subpopulations for exposure assessments either under sections 25721(d)(2) and 25821(c)(2), or any other Prop 65 regulation. Plaintiff opposes.

On April 5, 2022, the Court issued an Order granting Plaintiff’s ex parte application for an order granting leave to file a sur-reply in connection with the issue of whether 27 CCR 25721(d)(2) can apply in this case. The Court also indicated that Defendants may file a response to the issues and evidence raised in such briefing.

Requests for Judicial Notice

The Court grants Defendants’ request for judicial notice as to Exhibits G, J, and L.

The Court grants Plaintiff’s request for judicial notice as to Exhibits A through F.

Discussion

California Code of Regulations, title 27, section 25821, subdivision (c) provides as follows:

“(c) The following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available:

(1) The assumptions set forth in subsection (d) of Section 25721 shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available.

(2) For exposures to consumer products, the level of exposure shall be calculated using the reasonably anticipated rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population. The rate of intake or exposure shall be based on data for use of a general category or categories of consumer products, such as the United States Department of Agriculture Home Economic Research Report, Foods Commonly Eaten by Individuals: Amount Per Day and Per Eating Occasion, where such data are available.

(3) Where a maternal exposure to a chemical listed as causing reproductive toxicity has an effect on the conceptus (embryo or fetus), the level of exposure shall be based on the reasonably anticipated rate of exposure for the mother during the nine-month gestation period.”

California Code of Regulations, title 27, section 25721, subdivision (d) provides as follows:

“(d) The following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing cancer, unless more specific and scientifically appropriate data are available:

(1) For an exposure reasonably expected to affect the general population in any geographic area:

(A) The exposed individual ingests two liters of drinking water per day.

(B) The exposed individual inhales twenty cubic meters of air per day.

(C) The exposed individual has a lifespan of seventy years.

(2) For an exposure reasonably anticipated to affect a certain subpopulation of the general population in any geographic area, specific data (if available) relating to that subpopulation shall be used to determine the level of exposure.

  1. In the absence of more specific and scientifically appropriate data, the following assumptions should be made as appropriate:

Water

Air

Subpopulation

liters/day

cubic meters/day

Man (18 + years of age)

2

20

Woman (18 + years of age)

2

20

Woman with conceptus

2

20

Adolescent (10-18 years of age)

2

20

Child (2-10 years of age)

2

15

Infant (0-2 years of age)

1

4

(B) For an exposure reasonably expected to affect the conceptus (embryo or fetus), the gestation period for the exposed conceptus is nine months.

(3) For workplace exposures, the exposed worker inhales ten cubic meters of workplace air per eight-hour day, forty hours per week, fifty weeks per year over a forty-year period. The exposed individual from the general population who occasionally enters a workplace inhales 1.25 cubic meters of workplace air for one hour per month for a seventy-year lifetime.

(4) For exposures to consumer products, lifetime exposure shall be calculated using the average rate of intake or exposure for average users of the consumer product, and not on a per capita basis for the general population. The average rate of intake or exposure shall be based on data for use of a general category or categories of consumer products, such as the United States Department of Agriculture Home Economic Research Report, Foods Commonly Eaten by Individuals: Amount Per Day and Per Eating Occasion, where such data are available.”

Defendants assert that Section 25821(c)(2) applies to exposure assessments of reproductive toxins in foods, whereas Section 25721(d)(2) applies to environmental and occupational exposures, not to food exposures.

Defendants first assert that “[t]o date, five courts have reached final judgment on a defendant food manufacturer’s statutory safe harbor defenses under Health & Saf. Code 25249.10(c).[1] In each case, the court applied section 25821(c)(2) (reproductive toxins) and/or section 25721(d)(4) (carcinogens). No court has applied Section 25721(d)(2) or an ethnic subpopulations theory.” (Mot. at p. 7:21-24.) Defendants first cite to Environmental Law Foundation v. Beech-Nut Nutrition Corp. (2015) 235 Cal.App.4th 307, 312, in which the plaintiff alleged that “certain of defendants’ products contain[ed] toxic amounts of lead sufficient to trigger the duty to provide warnings to consumers. After a bench trial, the trial court entered judgment in favor of defendants, concluding they had no duty to warn because they satisfactorily demonstrated that the average consumer’s reasonably anticipated rate of exposure to lead from their products [fell] below relevant regulatory thresholds.” The plaintiff appealed from the judgment, and the Court of Appeal affirmed. (Ibid.) The Court of Appeal noted that “[u]nder the regulations, the ‘level of exposure’ is determined by ‘multiplying the level in question ... times the reasonably anticipated rate of exposure for an individual to a given medium.’ (Regs., 25821, subd. (b).) The level of exposure is based in part on the ‘pattern and duration of exposure that is relevant to the reproductive effect which provided the basis for the determination that [lead] is known to the state to cause reproductive toxicity.’ (Ibid.) The same regulation describes a number of default assumptions for use in calculating the reasonably anticipated rate of exposure. For example, ‘[w]here a maternal exposure to a chemical listed as causing reproductive toxicity has an effect on the [embryo or fetus], the level of exposure shall be based on the reasonably anticipated rate of exposure for the mother during the nine-month gestation period.’ (Regs., 25821, subd. (c)(3).)” (Id. at p. 327.) The Beech-Nut Court does not discuss Section 25721. The remaining authority cited by Defendants in footnote 7 of their motion is non-binding.

Defendants also argue that the phrase “ in any geographic area,” signals that Section 25721(d)(2) applies to environmental and occupational exposures which are tied to geographic areas, and assert that Section 25721(d)(2) was adopted to assist companies that need to perform an exposure assessment to determine the subpopulation in the geographic area around their

facilities that may be exposed to emissions exceeding Prop 65 safe harbor levels. But Defendants cite no authority in support of these assertions.

Plaintiff counters that Section 25721(d)(2) applies to all exposures to which a subpopulation might be exposed, not just environmental. Plaintiff notes that Section 25821(c)(1) incorporates “subsection (d) of Section 25721,” in its entirety and does not expressly exclude Section 25721(d)(2). In addition, Plaintiff notes that Section 25721(d)(2) applies to “an exposure reasonably anticipated to affect a certain subpopulation of the general population in any geographic area,” and that the language of this subsection does not limit such exposures to environmental exposures. (Emphasis added.)

Defendants also assert that “OEHHA has expressly rejected CAG’s claim that section 25821(c)(1) requires 25721(d)(2) to be used for food exposures to chemicals that cause reproductive toxicity.” (Mot. at p. 10:2-3.) Defendants cite to the California Office of Environmental Health Hazard Assessment’s Final Statement of Reasons (“FSOR”), title 22, California Code of Regulations, Safe Drinking Water and Toxic Enforcement Act of 1986, Sections 12701, 12801 (June 1989). (See Singh Decl. 5, Ex. D.) They note that the FSOR provides that “[s]ubsection (c)(1) does not apply to exposures to consumers, since that paragraph refers to the ‘average rate’ of intake. As discussed above, the application of average rates of exposure to reproductive toxicants may not be appropriate.” (FSOR, p. 84.) However, the current version of subsection (c)(1) of Section 25821 does not refer to the “average rate” of intake.[2] It provides that “[t]he assumptions set forth in subsection (d) of Section 25721 shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available.” (Cal. Code Regs., tit. 27, 25821(c)(1).) In addition, as Plaintiff notes, the FSOR also provides that “[p]aragraph (d)(2) of section 12721 provides that different assumptions should be used where the exposure is expected to affect only a subpopulation to which different assumptions properly apply. Certain subpopulations need to be addressed where circumstances involve particular products or environmental conditions which may pose a possible exposure risk to a distinct group of people. For example, certain products may be used primarily by women. Paragraph (d)(2) provides different assumptions for various subpopulations for the ingestion of water and inhalation of air.” (FSOR, p. 84, emphasis added.)[3] Plaintiff notes that a “consumer product” includes “food” within the meaning of the regulations. (Cal. Code Regs. tit. 27, 25600.1(d).)

Defendants assert that if Plaintiff’s interpretation were applied, it would render Section 25721(d)(4) “nugatory” because that subsection explicitly addresses consumer products. Defendants note that “[w]hen interpreting related statutory provisions, an interpretation that renders one section nugatory should be avoided if possible.” (Los Angeles County Dependency Attorneys, Inc. v. Department of General Services (2008) 161 Cal.App.4th 230, 237.) Plaintiff counters that Section 25821(c)(2) and Section 25721(d)(2) are complimentary, such that undertaking the “average consumer” analysis of Section 25821(c)(2) does not exclude a subpopulation analysis under Section 25721(d)(2), if there is a subpopulation that applies. Defendants cite to no to authority showing that Section 25821(c)(2) and Section 25721(d)(2) are mutually exclusive.[4] In addition, as noted by Plaintiff, Section 25821(c) provides flexibility, indicating that “[t]he following assumptions shall be used to calculate the reasonably anticipated rate of exposure to a chemical listed as causing reproductive toxicity, unless more specific and scientifically appropriate data are available…” (Emphasis added.)

In its sur-reply, Plaintiff asserts that New York State technical documentation supports race or ethnicity subpopulation analysis and supports the use of percentile (such as (not the

“mean”) consumption rate to inform toxicology assessments in the interest of public health. (DeSantis Decl., 11.) Plaintiff notes that The New York State technical support document entitled “Derivation of Health-Based Guidance Values for Metals in Spices,” cites to the U.S. Food and Drug Administration to state:

“US FDA (2013, 2017) has recommended that to improve spice safety, it is

necessary to ‘determine the distribution and variability of spice consumption

servings among general and susceptible U.S. populations. This information

cannot be accurately determined with the National Health and Nutrition

Examination Surveys (NHANES) data. Such data are needed to quantitatively

characterize the public health risk associated with spice ingestion and would be

most useful if it included additional data about high consumers and susceptible populations.” (DeSantis Decl., 4-5, Ex. C, p. 28.)

Defendant notes that the New York Technical Document also provides that “[a]lthough FCID [Food Commodity Intake Database] has some limitations (See Section 1.3.4), it provides the most comprehensive approach to estimating spice consumption among various

populations within the U.S.” (DeSantis Decl., 4, Ex. C, pp. 29-30.) In any event, as Defendants also note, the question before the Court in this briefing is the applicability of 27 Cal Code Regs. 25721(d)(2), not the admissibility (or weight) of the data presented by Plaintiff.

Lastly, Defendants seek an order that Section 25721(d)(2)’s use of the phrase “certain subpopulations in a geographic area” does not support using ethnic subpopulations for exposure assessments either under sections 25721(d)(2) and 25821(c)(2), or any other Prop 65 regulation. But Defendants cite to no legal authority indicating that ethnic subpopulations may not be considered. Moreover, whether there is available and admissible data pertaining to a certain subpopulation in this case is a different question than the applicability of section 25721(d)(2), and is thus outside the scope of this briefing.[5]

Conclusion

Based on the foregoing, Defendants’ motion is denied. Plaintiff is ordered to give notice of this Order.

DATED: June 16, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court


[1]Health and Safety Code section 25249.10 concerns exemptions from the warning requirement contained in Health and Safety Code section 25249.6 (required warning before exposure to chemicals known to cause cancer or reproductive toxicity).

[2]Pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 25), there was a change without regulatory effect renumbering title 22, section 12821 to title 27, section 25821 filed 6-18-2008, including amendment of subsection (c)(1). (Cal. Code Regs. tit. 27, 25821). Page 82 of the FSOR references “Section 12821.”

[3]Pursuant to section 100, title 1, California Code of Regulations (Register 2008, No. 25), there was a change without regulatory effect renumbering title 22, section 12721 to title 27, section 25721 filed 6-18-2008. (Cal. Code Regs. tit. 27, 25721).

[4]Rather, Defendants argue that “[t]he regulations are not ‘complementary,’ as CAG contends, where CAG fails to cite a single, publicly available source of data to show that ethnic groups consume more spices in a geographic area.” (Reply at p. 3:2-4.)

[5]The first sentence of Defendants’ motion provides, “[t]he question before the Court is: Which Proposition 65 regulation—California Code of Regulations, title 27 (Regulations), section 25821(c)(2) or section 25721(d)(2)—applies to exposure assessments of reproductive toxins in foods (spices)?” (Mot. at p. 4:2-4.)



Case Number: ****5798 Hearing Date: February 1, 2022 Dept: 50

Superior Court of California

County of Los Angeles

Department 50

consumer advocacy group, inc., et al.,

Plaintiff,

vs.

gel spice company, inc., et al.

Defendants.

Case No.:

BC 665798

Hearing Date:

February 1, 2022

Hearing Time:

2:00 p.m.

ORDER RE:

PHASE TWO COMBINED MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE SUMMARY ADJUDICATION, BY DEFENDANTS GEL SPICE CO., INC, BIG LOT STORES, INC., GROCERY OUTLET, INC. AND TARGET CORPORATION ON STATUTORY AFFIRMATIVE DEFENSES ON THE

MERITS (HSC 25249.10(c))

The motion for summary judgment or in the alternative, summary adjudication on statutory affirmative defenses on the merits brought by Defendants Gel Spice Co., Inc., Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) is continued as set forth below.

The parties have interposed more than 260 evidentiary objections (including more than 250 objections by Plaintiff Consumer Advocacy Group, Inc. alone). Due to the voluminous number of objections, the hearing on the motion will be continued to a date that will be set at the Hearing on Objections discussed below.

The Court orders the parties to meet and confer by telephone or in person in a serious and good faith effort to resolve and eliminate the objections. The only objections that should remain are those that pertain to material evidence regarding material issues. Keeping the rules of evidence in mind, the parties should be able to reduce the objections to just a few. If any material objections remain unresolved, the parties are to set them forth in a joint statement with the text, the objection, and the argument of each side in favor of their respective positions regarding the remaining material objections, along with a space for a ruling.

The joint statement must be filed with a courtesy copy delivered to Department 50. The Court will review any remaining objections with the parties at a hearing on at 2:00 p.m. (the “Hearing on Objections”). The date for the hearing on the motion will be set at the Hearing on Objections.

If necessary, based upon the resolutions reached during the meet and confer process and/or at the Hearing on Objections, the parties may respectively file and serve revised briefing and evidence. The revised evidence may eliminate objectionable material; however, no new evidence or new argument is to be submitted unless it is as a result of compromises reached during the meet and confer process. In the event that revised briefing and evidence is necessary, the Court will discuss with the parties a briefing schedule for the revised briefing at the Hearing on Objections.

Defendants are ordered to give notice of this Order.

DATED: February 1, 2022

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



b'

Case Number: ****5798 Hearing Date: July 15, 2021 Dept: 50

THE COURT IS GOING TO NEED ADDITIONAL TIME TO REVIEW THE MOTIONS. THE JUDICIAL ASSISTANT WILL CONTACT THE PARTIES ONCE A NEW DATE FOR THE HEARING ON THE MOTIONS IS DETERMINED. NO APPEARANCE IS NECESSARY. '


Case Number: ****5798    Hearing Date: March 26, 2021    Dept: 50

 

 

Superior Court of California

County of Los Angeles

Department 50

consumer advocacy group, inc., et al.,

Plaintiff,

vs.

gel spice company, inc., et al.

Defendants.

Case No.:

BC 665798

Hearing Date:

March 26, 2021

Hearing Time:

2:00 p.m.

ORDER RE:

PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT OR, IN THE ALTERNATIVE, SUMMARY ADJUDICATION RE PHASE 2 LEGAL AFFIRMATIVE DEFENSES; and

PHASE TWO COMBINED MOTION FOR SUMMARY JUDGMENT BY DEFENDANTS GEL SPICE CO., INC., BIG LOT STORES, INC., GROCERY OUTLET, INC., AND TARGET CORPORATION ON ISSUES OF 1) FEDERAL PREEMPTION; 2) COMMERCE CLAUSE; 3) FIRST AMENDMENT, AND 4) EQUAL PROTECTION AND DUE PROCESS

The cross-motions for summary judgment by Plaintiff Consumer Advocacy Group, Inc. (“CAG”) and Defendants Gel Spice Company, Inc., Big Lots Stores, Inc., Grocery Outlet, Inc., and Target Corporation (collectively, “Defendants”) are continued as set forth below.

The parties have interposed more than 150 evidentiary objections. Due to the voluminous number of objections, the hearing on the cross-motions will be continued to a date that will be set at the Hearing on Objections discussed below.

The Court orders the parties to meet and confer by telephone or in person in a serious and good faith effort to resolve and eliminate the objections. The only objections that should remain are those that pertain to material evidence regarding material issues. Keeping the rules of evidence in mind, the parties should be able to reduce the objections to just a few. If any material objections remain unresolved, the parties are to set them forth in a joint statement with the text, the objection, and the argument of each side in favor of their respective positions regarding the remaining material objections.

The joint statement must be filed and a separate ruling sheet must be lodged directly in Department 50 by noon on _______________. The Court will review any remaining objections with the parties at a hearing on _______________ at 2:00 p.m. (the “Hearing on Objections”). The Court continues the hearing on the cross-motions to ________________, 2:00 p.m., in Dept. 50.

If necessary, based upon the resolutions reached during the meet and confer process and/or at the Hearing on Objections, the parties may respectively file and serve revised briefing and evidence. The revised evidence may eliminate objectionable material; however, no new evidence or new argument is to be submitted unless it is as a result of compromises reached during the meet and confer process. In the event that revised briefing and evidence is necessary, the Court will discuss with the parties a briefing schedule for the revised briefing at the Hearing on Objections.

Defendants are ordered to give notice of this Order.

DATED: March __, 2021

________________________________

Hon. Teresa A. Beaudet

Judge, Los Angeles Superior Court



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