Environmental Health Advocates v. Pancho Villa's - Proposition 65 Notice Requirements

Filed 2/20/26 CERTIFIED FOR P UBLICATION COURT OF APPEA L, FOURTH APPEL LATE DISTRI CT DIVISION ONE STATE OF CALIFO RNIA ENVIRONMENTA L HEALTH ADVOCATES, INC., Plaintiff and A ppellant, v. PANCHO VILLA'S, INC., et al., Defendants and Res pondents. D084705 (Super. Ct. No. 37 - 2021 - 00034211- CU - MC -CTL) APPEAL from a jud gment of the S uperior Court of San Diego Count y, Joel R. Wohlfei l, Judge. Rev ersed and remanded with directions. Entorno Law, Jake W. Schulte, No am Glick, and Craig M. Nicholas fo r Plaintiff and A ppellant. Aguirre & Severson, Michael J. Aguirre, and Maria C. Severson for Defendant and Resp ondent Pancho Villa’s, Inc. INTRODUCTION The Safe Drinking Water and Toxic En forcement Act of 1986 (Health & Saf. Code, § 2 5249.5 et seq.), adop ted by California vot ers in 1986 as

2 Proposition 65, 1 is a remedial statute int ended to protec t the public fr om exposure to chemica ls known to cau se cancer or reproducti ve toxicity. (§ 25249.6.) Busine sses that violate Pro position 65 can be s ued by t he Attorney General a nd local prosecutors, or by pr ivate individuals ac ting in the public interest. (§ 25249.7, s ubd. (c).) A private individu al may bring an action only after pro viding a notice of violation t o the Attor ney General, loc al prosecutors, and the alleged violat or, an d 60 days have pass ed without the applicable prosecuti ng agencies com mencing an enforceme nt action. (§ 25249.7, subd. (d)(1)–(2).) The 60 - day notice must satisfy four general requir ements: (1) identification of t he noticing individu al or enti ty, with th eir contact information, and the alleged viola tor, (2) identific ation of each chemic al involved in the alleg ed violation, (3) identification of the app roximate time period of the violati on, and (4) att achment of a c opy of “ ‘Th e Safe Drinking Water and Toxic En forcement Act of 1986 (Proposition 65): A Summary ’ ” (Appendix A) prepar ed by the Office of E nvironmental Health Hazard Assessm ent (OEHH A). (Cal. Code Regs., 2 t it. 27, § 25903, s ubd. (b).) A person may not com mence a public interest actio n without c omplying with all these requirements. (Regs., § 259 03, subd. (a).) Environmental Hea lth Advocates, Inc. (EHA) bro ught a Pro position 65 action against Panc ho Villa’s, Inc. (Pancho Villa’s), alleging its tortilla 1 Hereinafter referred to as the Act o r Proposition 65. Furthe r undesignated statut ory references are to the Health & Safet y Code. 2 Further references t o regulations a re to title 27 of the Califo rnia Code of Regulations, exce pt as otherwise specified, an d will be cited as “(Regs., § 25 903),” for exam ple.

3 products exposed co nsumers to acry lamide, a kn own carcin ogen. Before E HA filed suit, it provide d Pancho Villa ’s and the Atto rney Gener al with a 60 -d ay notice. Pancho Vill a’s asserts the action must be dis missed because the notice was def ective in two ways. First, relying o n the regulation’s text th at the notice is to provide the name, a ddress, and te lephone number of “ a responsible individual within the noticin g entity ” (Regs., § 25903, subd. (b)(2)(A)(1), it alics added), P ancho Villa’s argues EHA improperly provided contact inf ormation for its reta ined counsel ins tead. Second, although EHA attached OEH HA’s summary of Proposition 65, it was not the current version. Ac cepting these a rguments, the trial c ourt concluded EHA f ailed to compl y with the not ice require ments and granted Pancho Villa’s motion for judgment on the pleadin gs, resulting i n dismissal of the action. The question p resented in th is appeal is whether a party’s failure to strictly comply with a particular pr ocedural step of the noti ce requirements under section 25903 of the regulations will, or w ill not, have the effec t of invalidating a Propo sition 65 actio n. No case has answered this specific question. We c onclude secti on 25903 is to be gi ven directory effect a nd substantial complia nce is the gover ning test. Acc ordingly, we reverse the judgment on the ple adings. BACKGROUND I. Overview of Pro position 65 Proposition 65 prohi bits businesses from knowing ly exposing consumers to chemicals kno wn by the state to cause cancer or reproductive toxicity without a w arning (§ 2524 9.6), and from knowingly releasin g such chemicals into sourc es of drinking w ater (§ 2524 9.5). The “ measure was driven by the voters’ desire for greater p rotection again st hazardous

4 chemicals, specifical ly including info rmation about exp osures, strict enforcement [of the law,] and deter rence of actions thre atening publi c health and safety.” (Lee v. Amazon.com, I nc. (2022) 76 Cal.App.5th 200, 236.) EHA’s action allege s a violation of section 25249.6, which provides, i n part: “No person in the course of doing business shall know ingly and intentionally expose any individua l to a chemical known to t he state to cause cancer or reproducti ve toxicity wit hout first giving clear and reason able warning to such individual.” A person who violates or threatens to violat e the Act may be enjoi ned and liable for civil penal ties of up to $2,500 per day for each violation. (§ 25249.7, su bd. (a) & (b)(1).) Seventy-five percen t of the penalties collected is pa id to the S tate Treasury (§ 252 49.12, subds. (b) & (c) (1)), and 25 perce nt to a person s uing under Pr oposition 65 in the public interest. (§ 25249.1 2, subd. (d)). A person may bring a n enforcement action in the public interest if two requirements are sa tisfied. First, t he action mus t be comme nced more than 60 days from the da te the person g ave notice of t he claimed violation s to the Attorney General a nd the district attor ney, city attorn ey, or prosecutor in t he jurisdiction where t he violation is alleged to ha ve occurred, and to the all eged violator. (§ 25249. 7, subd. (d) (1).) If, as here, the action alle ges a violation of section 25249.6, the notice must also inc lude a “certifica te of merit executed by the attorne y for the noticin g party, or by the noticing party, if the n oticing party is not represe nted by an attorney. The cert ificate of merit sh all state that the person exec uting the certific ate has consulted with one or more persons with releva nt and appropr iate experience or ex pertise who has reviewed facts, studies, or ot her data regarding the ex posure to the listed chemical that is the subject of the ac tion, and that, ba sed on that informatio n, the per son executing th e certificate believes there is a

5 reasonable and meri torious case for the private action. Factual information sufficient to establis h the basis of the ce rtificate of meri t... shall be attac hed to the certificate of merit that is s erved on the At torney General.” (§ 25249.7, subd. (d)(1).) Secon d, a person ma y commence a public int erest action onl y if the Attorney Gener al or ap plicable local prosecut or do es not bring a publi c enforcement action within the 60 days. (§ 2524 9.7, subd. (d)(2).) The language of the Act requir es “notice of an all eged violati on of [s]ection 25249.5 or 25249. 6 that is the subject of the private action” (§ 25249.7, subd. (d)(1)) “but does n ot define the t erm or explain wha t would be adequate notice” (Yeroushalmi v. Miramar She raton (200 1) 88 Cal.App.4th 738, 744 (Yeroushal mi) [construing the Act’s former langua ge, “ ‘notice of the violation’ ”]). Becau se the Act itself “provides rel atively littl e definition of the notice requirements,” OEHHA 3 adopted regulatio ns in 1996 to “specif y information that sh o uld be include d in 60 -day notices serve d under the Act.” (OEHHA, Final Sta tement of Reas ons, Adopt S ection 12903, Notice s of Violation, Title 22, Division 2, Californi a Code of Regu lations (1997) pp. 2–3, 1 (FSOR).) 4 3 OEHHA is the “ ‘[l]ead agency’ ” d esignated by t he Governor to implement the provi sions of Proposi tion 65. (Reg s., § 25102, subd. (o).) The scope of OEHHA’s q uasi -legislativ e authority un der the Act is limit ed to issuing “regulations, standards, a nd permits as necessary to conform with and implement this chapter and to furth er its purposes.” (§ 25249.12, subd. (a).) 4 EHA’s and Pancho Villa’s unopposed requests fo r judicial n otice are granted in part and denied in part. On both par ties’ reques ts, we take judicial notice of OE HHA’s FSOR in ado pting for mer section 12903, now section 25903 of the regulations (EH A’s Exhibit 17 and Panc ho Villa’s Exhi bit 3). We also grant P ancho Villa’s reques t to take judici al notice of EH A’s 60-

6 The regulation that sets forth the re quired conten ts of the notice is section 25903, form erly section 12 903. 5 It provides that, in public interest actions, “ ‘notice of t he violation which i s the subject of the action’... shall mean a notice meeti ng all requirements of this section. No person shall commence an action to enforce the pr ovisions of the Act ‘in the public interest’ pursuant to [section 252 49.7, su bdivision (d)] of t he Act exce pt in compliance day pre -suit notices in this case (Ex hibits 1 and 2); OEHHA’ s “Initial Statement of Reaso ns, Proposition 65, Title 27, Calif ornia Code of Regulations, Proposed Amen dments to Section 25903, Appe ndix A – A Summary,” publishe d on August 8, 2014 (Exhibit 5); and OEHHA’s “Appendix A, Office of Environment al Health Hazard A ssessment, C alifornia Environmental Prot ection Agency, The Safe Dri nking Water and To xic Enforcement Act of 1986 (Proposition 6 5): A Summary,” published May 2017 (Exhibit 7). (Capita lization omitte d.) We deny the remain der of the parti es’ requests fo r judicial notice, specifically EHA’s E xhibits 1 to 1 6, and 18, and Pancho Vill a’s Exhibits 4, 6, and 8 to 19. (See Meridian Financial Services, Inc. v. Phan (2021) 67 Cal.App.5th 657, 68 8, fn. 10 [an a ppellate court c an decline to take j udicial notice of matters th at are not relevant o r are not dispositive ].) Includ ed in this denial are the p arties’ request that we judicially no tice 19 superior co urt decisions in unrelat ed matters. B oth parties shou ld be aware that re liance on unpublished sup erior court decisi ons in their briefings o n appeal is improper under California Rules of Court, rule 8.1115(a). (F oster v. Britton (2015) 242 Cal.Ap p.4th 920, 933, fn. 9; Aguirre v. Amsc an Holdings, Inc. (2015) 234 Cal.Ap p.4th 1290, 12 98, fn. 5.) Unpublishe d superior court decisions “do not ha ve precedential valu e” (Pereira- Goodma n v. Anderson (1997) 54 Cal.App. 4th 864, 872, f n. 5) and do not provide g uidance to other courts and litigants (Neary v. Regents of University of Cali fornia (1992) 3 Cal.4th 273, 282). 5 Section 12903 of the regulations was ren umbered as sec tion 25903 in 2008 without subst antive changes. (Reg s., § 25903, Register 2008, No. 25 (June 20, 2008) pp. 1021–1022.) We refer to the regulation by its current number, section 259 03, throughout.

7 with all requiremen ts of this sectio n.” (Regs., § 25903, sub d. (a).) Th e regulation specifies that the notice must include all the following: “(1) General Inform ation. Each notice shall include as an attachment a copy o f ‘The Safe Dri nking Water and To xic Enforcement Act of 1986 (Proposition 6 5): A Summary ’ (see Appendix A) prepar ed by the lead agency. This attachment need not be included in t he copies of notices sent to public enforc ement agencies. A copy of this attachmen t may be obtained by writing to the [OEHHA] . . .. “(2) Description of V iolation. A n otice shall provide adequate information fro m which to allow th e recipient to assess the nature of the allege d violation, as set fo rth in this paragrap h. The provisions of this pa ragraph shall not be interpreted to requi re more than reasonab ly clear inf ormation, expresse d in terms of common usage and understanding, on each of the indic ated topics. “ (A) For all notices, the notice shall ide ntify: “(1) the name, addr ess, and telephone n umber of the noticing individual or a responsible in dividual wi thin the noticing entity and t he name of the entity; “(2) the name of the alleged violator or v iolators; “(3) the approximat e time period during which the viol ation is alleged to have oc curred; and “(4) the name of eac h listed chemic al involved in the a lleged violation [.] ” (Regs., § 25903, subd. (b)(1) –(2) (A), italics added.) In addition to these general require ments, for all eged violation s involving consumer product exposur es under secti on 25249. 6 of the Act, the notice must also state “the rout e of exposure by which ex posure is alleged to occur (e.g., by inha lation, inge stion, dermal c ontact)” and “the name of the con sumer product .. . or the spec ific type of consumer

8 product . . . that cau se the violation, wit h sufficient specifici ty to inform the recipients of the nature of the it ems allegedly sold in violation of the law and to disti nguish those pr oducts . . . from oth ers sold or offered by the allege d violator for w hich no violat ion is alleged. The identification of a ch emical . . . mus t be provided for each pr oduct or service identified in the notice.” (Regs., § 2590 3, subd. (b)(2)(C) & (D).) II. EHA’s 60 - Day Notice to Panc ho Villa’s In September 2020, EHA sent Pancho V illa’s a Proposition 65 notice of violation alleging th at its tortilla products exposed cons umers to acry lamide. In January 2021, af ter the required 60 days had pass ed and neither the Attorney General n or local prosecut or had comm enced a pro secution, EHA filed a law suit seeki ng injunctive rel ief and civil penal ties f or Pancho Villa’s alleged violati on of section 2 5249.6 of t he Act. In September 2021, EHA issu ed an ame nded notice of violat ion to identify the tor tilla manufacturer as Area 51 MexProd, Inc. and its distributor as Tortil leria Santa Fe, Inc. After the new 6 0 -day period had passed, EHA amend ed its c omplain t to substitut e Area 51 M exprod, Inc. for DOE 1 and Tortiller ia Santa Fe, Inc. for DOE 2. 6 T he original notice i dentified EHA as the noticing party “act ing in the interest of the gener al public” and Panc ho Villa’s the alleged violator. Th e notice identified acr ylamide as th e toxic chemical, stating it was listed as “a 6 Neither Area 51 Me xProd, Inc. or T ortilleria Sa nta Fe, Inc. is a party to this appeal, so we d o not discuss th em further unless nec essary for co ntext. Our analysis will also focus on the sufficiency of EHA’s orig inal notice to Pancho Villa’s since Pancho Villa’s is the only party in t his appeal.

9 carcinogen” and “a d evelopmental and reproductive toxi n” an d alleging it was present in “Pancho Villa Farmer’s Mar ket Tostadas.” The product w as further identified by a unique UPC or SKU number. The route of ex posure was identified as “d ermal absorpti on, ingestion, and in halation by consumers” and “occ urring since at least August 2020” and “ continuing to this day.” The notic e alleged Pancho Vil la’s failed to p rovide “a clear and reasonable warning ” of the alleged exposure to acrylam ide caused b y ordinary use of the product. The notice speci fically state d EHA was r epresented by t he law firm of Nicholas & Tomase vic, LLP. It provided the fir m’s address and telephone number. A nd it con cluded with dir ections to contact at torney Jake Schult e of the firm for any que stions or discuss ion. Except for correctin g the names of the manufacturer and d istributor, the amended notice contained the s ame information as the o riginal; and both the original and am ended notices attached Appe ndix A, OE HHA’s summary of Proposition 65, a nd a Certificate of Merit executed by Schulte. However, t he original notice a ttached an earl ier version of Appendix A, while the amended notice atta ched the current version. II I. Judgment on the Pl eadings In April 2024, Panc ho Villa’s filed a motion for judgmen t on the pleadings. It assert ed private citiz ens may not bring an action on b ehalf of the public interest without s trictly complying w ith all of Pr oposition 65’s 60- day pre -suit notice r equirements. And, in its vie w, EHA’s no tice w as deficient in two way s. and those def iciencies comp elled dismi ssal of the action.

10 First, Pancho Villa’s argued section 25903 of the regul ations require d th at EHA’s notice p rovide the nam e, address, and tele phone number of “ ‘t he noticing individual or a responsible in dividual wi thin the no ticing entity ’ ” (italics added), mea ning a person w ithin EHA a nd not EH A’s retained counsel. (See Regs., § 25903, sub d. (b)(2)(A)(1).) This deficie ncy, Pancho Villa’s argued, “depr ives [it ] of the o pportunity to resolv e alleged viol ations directly with the not icing party and ther eby discourages ‘resolution o utside of the courts,’ ” and of “the chance to assess whether the cl aims are legitima tely being pursued o n behalf of th e ‘public in terest’ ” or “whether EHA is a ‘shell entity for lawyer bo unty hunters.’ ” Second, Pancho Vill a’s asserted E HA’s notice fai led to stric tly comply with the regulation’ s requirement of att aching Appendix A, OEHHA’s summary of Proposi tion 65, becau se the original notice had attached an “outdated version” of Appendix A. (See Regs., § 25903, sub d. (b)(1).) Pancho Villa’s argued that not requiring notici ng parties to attach the current version of Appendix A to their notice s of violations “wo uld defeat the purpos e of OEHHA underta king formal rul emaking processes t o revise the appendix.” EHA opposed, conte nding its notice substantial ly complied with the Proposition 65 regul ation. EHA ar gued the purpo se of the r egulation’s requirement that th e notice provide contact informatio n was “to affo rd the recipient with a point of contact to discuss resolution” and where, as here, the noticing party is rep resented by counsel, any pre - suit settlement or withdrawal of the n otice would nece ssarily be discusse d with counsel. As for Appendix A, EHA a rgued the purpo se of the requ irement was to pro vide th e recipient with “a ‘convenient source of general informat ion’ regarding Proposition 65.” EH A asserted any “minor technic al deviation” of thes e

11 requirements did no t undermine th e ir purposes a nd were not egregious enough to warrant d ismissal. The trial court agre ed with Pancho Villa’s. The court found the notices were defective because they provided co ntact informati on of EHA’s o utside counsel instead of “ ‘ a responsible indivi dual within ’ ” EHA. It also h eld that the original notice was defective because it fail ed to attach the “mor e complete and current revisio n” of Appe ndix A. As a re sult, the court dismissed the action. DISCUSSION Our review of al l issues in this app eal is de novo because it i nvolves review of an order g ranting judgment o n the pleading s (Ka psimallis v. Allstate Ins. Co. (2002) 104 Cal. App.4th 667, 672), in terpret ation of a regulation (Dep artm ent of Ind ust rial Relations v. Occupation al Safety & Health Appeals Bd. (2018) 26 Ca l.App.5th 93, 1 00 (Departm ent of Indust rial Relations), and determinatio n of whether a Proposition 65’s 60 - day notice complies with statutory requirement s (Consumer Advocacy Group, Inc. v. Kintetsu Enterpri ses of Americ a (2007) 1 50 Cal.App.4 th 953, 962 (Kintetsu)). I. Substantial Compli ance Doctr ine The substantial com pliance d octrine is c ommonly under stood to mean actual compliance w ith “ ‘ “the sub stantial or esse ntial requirements of something,” ’ ” such as a statute or regulation, “ ‘ “that satisf ies its purpose or objective even thoug h its formal req uirements are not c omplied with.” ’ ” (Manderson -Saleh v. Regents of Uni versity of Cali fornia (20 21) 60 Cal.App.5th 674, 70 1 (Manderson -Saleh); accord Troyk v. Farmers Group, Inc. (2009) 171 Cal. App.4th 1305, 1332 (Troyk) [substa ntial compliance “ ‘ “means actual co mpliance [with] the substance esse ntial to every

12 reasonable objective ” ’ ” of a statu te or regulation ].) Under the doctrin e, whe re there is comp liance as to all matters of substance, “ ‘ “ technical deviations are not t o be given the statu re of noncompliance.” ’ ” (Ma nderson - Saleh, at p. 701; acc ord Troyk, at p p. 1332–1333.) The “ ‘do ctrine gives effec t to our preference for substance over form. ’ ” (Troyk, at p. 1 333.) The substantial com pliance doctrine, however, “d oes not ap ply at all when a statute’s req uirements are man datory, instead of merely direc tory.” 7 (Troyk, supra, 171 C al.App.4th at p. 13 33, last italics added.) “It is o nly where statutory req uirements are accorded ‘ma ndatory’ rat her than ‘directory’ effect that failure to comply with a particular pr ocedural step w ill result in invalidating the . . . action to which the procedural requirement relates.” (Downtown Palo Alto Co m. for Fair Asses sment v. City Council (1986) 180 Cal.Ap p.3d 384, 394 (Palo Al to).) In essence, strict compliance with procedural requirement s is required for prov isions wit h mandatory effect, whereas subs tantial compliance will suffice for pr ovisions with directory effect. (Id. at pp. 394 –395.) A nd “ [u] nless the intent of the statut e can only be served b y demanding s trict compliance with its terms, substantial complia nce is the gover ning test.” (Id. at p. 394; see i d. at pp. 394 –395 [“unle ss a contrary int ent is manife stly expressed, such requirements will b e deemed direct ory rather than m andatory”].) As our high court h as explained, “there is no sim ple, mechanical tes t for determining whether a pr ovision should be gi ven ‘directory’ or ‘mandat ory’ 7 The cases we discus s here often invo lve statutor y requirements; their principles, however, are equally applica ble to regulations. (See Man derson- Saleh, supra, 60 Cal.App.5th at p. 701 [applying the doctrine to regul ations of the Regents of the University of C alifornia].)

13 effect. ‘In order to d etermine wheth er a particular stat utory provisio n ... is mandatory or direct ory, the court, a s in all cases of sta tutory construc tion and interpreta tion, must asc ertain the l egislative inte nt. In the absence of express language, t he intent must be gathered from th e terms of the statu te construed as a whole, from the nat ure and character of the act to be done, and from the conseq uences which wo uld follow the doin g or failure to do the particul ar act at the required time. [Cit ation.] When the object is to subserve some publi c purpose, the pr ovision may be he ld directory or mandatory as will b est accomplish that purpose.’ ” (Morris v. County of Marin (1977) 18 Cal.3d 901, 909 – 910.) T he “distinction bet ween mandatory an d directory does not depend on the literal wording o f the statute. Instead, ‘[t]he paramount considera tion is the objective of the s tatute.’ ” (Manderson -Saleh, supra, 60 Cal.App.5th at p. 703, quoting Palo Alto, supra, 18 0 Cal.App.3d at p. 395.) “ Thus, even wh en a statute uses ‘mandatory’ t erms, substantial co mpliance w ith statutory directives will suffic e if the purpose of the statu te is satisfie d.” (Manderson- Saleh, at p. 703.) In evaluating wh ether to designate a statu te or regulation as mandatory or dir ectory, “courts fo cus on its pu rpose or fu nction. ” (I d. at p. 704.) If the element is essential to promote th e overall de sign of the statute or regulatio n, “ it is ‘mand atory’ and less than full co mpliance is not acceptable.... If n ot, it is ‘directo ry.’ ” (Ibid., cit ation omitted.) If the directive “ ‘does not go to “ ‘the ess ence’ of the pa rticular object sough t to be obtained, or the pur pose to be accomplis hed” and a “departu re from the statute will cause n o injury to any person affected by i t,” th e provision will be deemed directory.’ ” (Ibid.)

14 II. Substantial Compli ance Is the Governing Test for Proposition 65’s Notice Requirements Proposition 65’s 60 - day notice serv es three core fu nctions. I t is to provide information necessary to (1) ena ble prose cuting agencies to “ ‘intelligently’ ” ass ess whether to i nvestigate and to f ile an enforcement action on behalf of t he public; (2) allow violators “an opport unity to cure the violation ” and “at le ast, prevent th e accrual of any furt her liability for penalties ”; and (3) t o “defin[e] the sc ope of the pri vate person’s right to sue under the statute.” (FSOR, at p p. 3–4; see Kinten tsu, supra, 150 Cal.App. 4th at p. 964.) W e conclude the failure to provide con tact information of “a responsible individual within the noticin g entity ” (Regs., § 25903, subd. (b)(2)(A)(1), it alics added) a nd attachment of an older summary of Proposition 65 do no t defeat the se overall objectiv es of the 60 - day notice. Accordingly, we con clude section 25903 of the reg ulations is to be gi ven directory effect, and substantial co mpliance is the gover ning test. In construing sectio n 25903 of th e regulations, “ our fundamental objective” in interpr eting an admi nistrative regulation is “to ascertain and effectuate the intent of the agency i ssuing the regulatio n.” (Department of Industrial Relations, supra, 26 Cal.App.5th at p p. 100–101.) We accord “an administrative agen cy’s interpretation o f its own regula tion great weight a nd deference, unless th e interpretation is u nauthorized or cl early erroneous.” (Manderson -Saleh, supra, 60 Cal. App.5th at p. 697.) “This rule recog nizes that an ‘agency has developed a le vel of “expertis e” in light of its fam iliarity with the legal and r egulatory issue s.’ ” (Ibid.) We look first to the text of t he regulation itself; if i t is “ ‘ “clear a nd unambiguous, th ere is no need f or construction, nor is it necessary to resor t to indicia of t he [agency’s]

15 intent.” ’ ” (Depart ment of Industria l Relations, at p. 101.) The plain meaning rule, howe ver, “ ‘ “does no t prohibit a court fro m determini ng whether the literal meaning of a [regul ation] comports with its purpose. ” ’ ” (I bi d.) Last, “ ‘[w]e do not construe a regulation in isolation, but instead read it with reference to the scheme of l aw of which it is a part, so that th e whole may be harmonized and retain effec tiveness.’ ” (Ibid.) In adopting section 25903 of the r egulat ions, OEHHA e xplicitly noted the three core functi ons of Pro position 65’s notic e of violatio n and set forth the required elemen ts of all notices in subdivisi on (b)(2) “in order to assure that such notices ac tually further t he[se] purposes.” (FSOR, at p. 4.) Subdivision (b) (2) of section 2 5903 explicitly pr ovides t hat “[a] notice shall provide adequate in formation from whic h to allow the recipi ent to assess t he nature of the allege d violation” and “sh all not be inte r preted to requ ire more than reasonably cle ar information, expressed in terms of common us age and understanding, on e ach of the indicated topics.” The agency used the term “reasonably clear” b ecause it want ed to assure th e regulations “are not interpreted in a manner that woul d require the n otice to pr ovide informati on in a manner that is more precise th an necessary. ” (FSOR, a t p. 12.) OEHHA stated thes e “information r equirements” are in tended “to ensure that notices provide adequ ate information neces sary for the rec ipients to evaluate the natu re and scope of the alleged violatio n” and “for pu blic prosecutors to evalu ate the merit and si gnificance of the alleged viol ation.” (FSOR, at pp. 8, 7.) The agency furt her cautione d that “the proposed regulation is not int ended to requir e that highly technic al informatio n be provided, to require disclosure of the evidence by which a violation wil l be proven, or to otherw ise turn the notice requirement into a trap for the unwary.” (Id., at pp. 15– 16, itali cs added.)

16 Regarding the requi rement the notice pr ovide “the name, address, an d telephone number o f the noticing in dividual or a responsible individ ual within the notic ing entity and the name of the en tity” (Regs., § 25903, subd. (b)(2)(A)(1)), OEHHA’s only c omment was that the “[i]dentific ation of the party giving the notice is neede d to give the r eceiving parties an opportunity to conta ct the noticing p arty to resolve the i ssues raised in the notice and to identif y who will be en titled to pursue a ci vil action” (FSO R, at p. 8). As mentioned, one purpose of the notice pro visions is to promo te dialogue and give th e alleged violator an opportunity to cure alleged violations. Direct co ntact between the noticed entity a nd th e noticing party’s principal is not esse ntial to promo ting this purpose, or any of the oth ers stated above. Indee d, there is no “d etailed and specific” mandate which requires or explains why contact m ust occur directly bet ween the not iced party and noticing p arty. The provi sion is thus gi ven directo ry effect. Subdivision (b) (1) of section 2 5903 of the regulations re quires that e ach notice attach a copy of OEHHA’s summa ry of Proposition 65, or Appendix A. OEHHA explained i t adopted this requirement because notices are se nt to businesses tha t may not be f amiliar wit h the requireme nts of Propos ition 65 and the noticin g party may not describe, or accurately d escribe, those requirements. (FS OR, at p. 6.) The agency emp hasized, however, “ [t]he summary is intende d only to provide general infor mation to the lay person about the prov isions of the st atute, and does not represe nt an interpre tation of the law.” (Ibid., i talics added.) It is “not inten ded to have th e force and effect of law, or to o bviate the need for c ompetent lega l advice. It is simply intended to pro vide general inform ation to the rec ipient. Indeed, the summary itself spec ifically so stat es.” (Ibid.) Pro viding OE HHA’s most recent ly revised su mmary of Prop osition 65, th ough perhaps prefera ble, is not

17 essential to the prov ision’s purpose of providing general information. This provision is also giv en directory effec t. Pancho Villa’s cite s several cases it contends are examples o f how “California appellat e courts have co nsistently en forced th [e] strict complian ce standard” for Propo sition 65 notic e standards. W e disagree with this characterization. T he parties hav e not pointed us to a case that holds stric t compliance is the go verning test for Proposition 65 no tice re quirements, nor have we found one. It appears no c ase has addre ssed this specific que stion. I n Yeroushalmi, s upra, 88 C al.App.4th 7 38, contrary to Pancho Villa’s claim, the court did not explicitly a pply strict com pliance bu t instead found the notice at issue f ailed to provid e “adequate, or indeed, an y information to assess the nat ure of the alle ged violatio n.” (Id. at p. 746.) This case, unli ke Yeroushalmi, is not one where one of the requirements was completely absent, such as missing the c ertificate o f merit, or failur e to identify the chemical. Thus, Yer oushalmi does not support a “strict com pliance” standard, rather it f ocused on wheth er the information was “adequate.” As another example, Council for Educ ation & Res earch on Toxics v. Starbucks Corp. (20 22) 84 Cal.App.5th 879, 900 (Starbucks) also did not deal with strict complian ce of Propositio n 65 notice re quirements. Rather, the issue there was whe ther the plainti ff’s description of the coffee produc ts complied with the r equirements to encompass claims r egarding acry lamide formed by the roasting of pla nt roots, nuts, and seeds a dded to coffee. The case did not apply a strict complianc e standard t o the notice requirements or even discuss strict c ompliance. Because we conclud e that the Propositio n 65 notice req uirement s are directory, not mand atory, their pur pose can be s erved throu gh substantial compliance, which “ means actual co mpliance in r espect to the subst ance

18 essential to every re asonable objective ” of the reg ulation. (Stasher v. Harger - Haldeman (1962) 58 Cal.2d 23, 29.) “But when t here is such actual compliance as to all matters of substanc e then mere tec hnical imperf ections of form or variation s in mode of ex pression . . . should n ot be given the stature of noncompl iance.” (I bid.) In other words, “notice must promote and satisfy the objective s of the law” to qualify as substant ial compliance. (Pal o Alto, supra, 180 Cal.App.3d at p. 396.) III. EHA’s Pre-Suit Noti ce Substantially Complie d with Section 25903 of the Regulations As noted, the notice to Pancho Villa ’s ide ntified EHA as the entity entitled to sue, the alleged violator, the toxic chemical (with greater specificity than is re quired), the rou te of exposure, the t imeframe of e xposure, and the certific ate of merit. The notice provided Panch o Villa’s with EH A’s counsel name and contact nu mber to be contacted for a ny questions or discussion, and an OEHHA summary o f Proposition 6 5, that while outdat ed still contained the g eneral summar y of the relevant la w. We conclude EHA ’ s pre -suit notice actu ally complied with all matters of su bstance, and thus a ny technical deviations will not be tre ated as noncomplia nce. A. Identification of Noticing Entit y with Co ntact Informatio n In furtherance of th e objective to pr omote dialogue an d information exchange, notices ar e required to co ntain the cont act inform ation of a “responsible individ ual within the noticing entity.” (Regs., § 25903, subd. (b)(2)(A)(1).) Here, EHA provi ded the nam e and conta ct information for its outside counsel, rather than so mebody “within” the organization, in its notice to Pancho Vil la ’s. Pancho V illa’s argues that EH A’s approach “[f]rustrate[s] the [r]egulatory [s]cheme.” (Boldf ace omitted.) We disagree.

19 Providing an attorn ey’s contact info rmation does not under mine any of Proposition 65’s obj ectives and substan tially complies with the notice requirement. We have not located any support for the trial cour t’s finding that “ [t] he intent behind the pr e - suit notice is t o enable bus inesses targeted by Prop[osition] 65 acti ons to economic ally and efficiently address concer ns raised in the pre-sui t notice by direc tly communicating with the priva te citizen enforcer.” O n the contrary, providing at torney contact inform ation meets the OEHHA’s stated objective of “giv [ing] t he receivin g parties an opportunity to conta ct the noticing p arty to resolve the i ssues raised in the notice and to identif y who will be entitle d to pursue a civil a ction.” B y identifying outside c ounsel, EHA pro vided “an opportu nity” for Panch o Villa’s to contact EHA thro ugh its counsel. The ability for EHA to exchange information with Pa ncho Villa’s tur ns on whethe r EHA’s de signated contac t person has sufficien t knowledge of the alleged vi olation. Hi s or her employment positio n does not affec t whethe r tha t core objec tive is obtained. Despite the trial cou rt’s pronouncem ent that it “becomes a cumbersome, expen sive process if t he targeted business is forced to communicate through counse l,” the noti cing party’s ret ained counsel may, in fact, be in the best p osition to com municate abo ut the alleged violati on. This is because the certif icate of merit must be signed “by the attorney for the noticing party, or by the noticing party, i f the noticing party is not represented by an attorney.” (§ 25249.7, subdivision (d)(1).) The Leg islature thus requires re presented pa rt ies such as EHA to act throug h their attorney s because drafting the notice is an ex pertise-dense endeavor involving highly complex regulations. The in dividual exe cuting the certifi cate must consult with qualified exper ts concerning the details of the exp osure and evaluate

20 whether the enf orcement action is meritorious, thus ensurin g they are knowledgeable abou t the nature an d extent of the alleged violation. (Ibid.) A retained attorney w ho consulted wi th experts is thus well p ositioned to communicate with alleged vi olators and public enforcers. Moreover, t he public prosecutor do es not need the addr ess and phone number of the complaining entity t o decide whethe r to intervene on be half of the public. Attorney involveme nt is also appropriat e because actions are general ly brought against lar ger companies. (§ 25249.1 1, subdivision (b) [notices cannot be filed agai nst a business with less than 10 employ ees].) Any settlement negotiati ons with Panch o Villa’s woul d also likely be thro ugh the EHA’s attorney as s ettlements are highly technic al, involve scientific analy sis and multiple legal r equirements, a nd must be a pproved by t he California Attorney General a nd published o n its website. (Cal. Code Regs., ti t. 11, §§ 3003, subd. (c) an d 3005.) T he trial court foun d “this require ment ensures t hat the pri vate enforcer is genuine, and not simply a ‘straw person’ use d by a law firm seeking only to gene rate legal fees. ” Pancho Vill a’s advance s this same argument on appeal. But w hile it is appropriate f or a trial c ourt to “ensure that its judgment se rves the public interest” in a Proposition 65 acti on (Kintetsu, supra, 141 Cal.App.4th at p. 62 [“In t he context o f Proposition 65 litigation, necessaril y brought to vi ndicate the pu blic interes t, the trial cour t also must ensur e that its ju dgment serv es the public in terest.”]), t her e is no indication OEH HA intended noticed parties to undertake th is type of inqui ry. Further still, Propos ition 65 has id entified the pr esence of a crylamide, a known carcinogen, i n food may be dangerous to th e public, a nd the notice and complaint here iden tify products th at allegedly c ontain acry lamide. Thus, irrespe ctive of EHA’ s motivation i n commencing the action, “ ‘the public

21 always has a signifi cant interest in seei ng that legal strictu res are properly enforced and thus, i n a real sense, the public always d erives a “benefit” wh en illegal private or pu blic conduct is re ctified. ’ ” (Starbuc ks, supra, 84 Cal.App.5th at p. 90 3.) In arguing that noti ce defects requir e dismissal, Pancho Vill a’s relies on cases involving si gnificant deficie ncies that ar e simply no t present here. In re Vaccine Cases (2005) 134 Cal.Ap p.4th 438, 453 –459, for example, the plaintiffs completely failed to file a 60-day notice conta ining a certific ate of merit. Similarly, Di Pirro v. America n Isuzu Motor s, Inc. (20 04) 119 Cal.App.4th 966, 97 5, the plaintiff did not serve t he require d certificate of merit until after the lawsuit was filed, w hen the certifica te should have bee n served with the 60 - day notice. In Physicians Com m ittee for Responsible Med icine v. KFC Co rp. (2014) 22 4 Cal.App.4th 1 66, 181, th e noticing entity’s counsel admitted a substantial element of the cer tificate of merit was missing. Here, there is no such failure. We concl ude EHA ’s provision of its outside counsel’s co ntact informati on substanti ally complied with th e notice requirements of Pro position 65. B. Prior Appendix A Version Subs tantially Complied with Noti ce Requirement Pancho Villa’s argu es that EHA’s attac hment of a prio r version of Appendix A to its or iginal notice “c onstitutes a clear vi olation of the regulation requiring attachment of the c urrent summary document.” The trial court similarly found EHA’s fai lure to attac h “the more complete and current revision does not eve n amount to substantial c ompliance with this pre -suit notice requi rement.” We di sagree.

22 The Appendix A req uirement was i ntended to “furnish the recipient o f a notice with backgr ound information ab out the law th at it is alleged to ha ve violated.” (FSOR, a t p. 19.) Appe ndix A itself s tates it “is not intended to provide authoritativ e guidance on the m eaning or applicatio n of the law.” (OEHHA, Appendix A, Office of Env ironmental Health Hazard Assess ment, California Environ mental Protection A gency, The Safe Drinking Water an d Toxic Enforcement Act of 1986 (Pr oposition 65): A Su mmary (May 2017) p. 1.) On the contrary, it has “basic infor mation about the pr ovisions of the law, and is intende d to serve only as a conve nient source of g eneral infor mation.” (I bi d.) It directs rea ders to the stat ute and OEHHA’s i mplementing regulations for furt her information. (Ibid.) Consistent with the trial cour t’s concern that notice recipients “are provided with imme diate access to a co mplete summary of the applicable law,” both versions of Appendix A attached to E HA’s notic es accomplish th e goal of providing ba sic information to the recipien t of a notice of viola tion a nd guiding them to furt her, more forma l authority. 8 The Appendix A th at EHA attached to its notic e provided Pan cho Villa’s w ith the requisite sum mary of the Act’s implement ing regulations and directed it to more formal authorit y. In doing so, it accom plished the notice p rovision’s centra l purpose of 8 We find no evidence in the rec ord to support Pancho Vil la’s assertion and the trial co urt’s claim th at “[m]any businesses targ eted by Prop [osition] 65 actions are small, family owned and do not have th e benefit of retained or in house counsel.” As noted previo usly, actions are gen erally brought agai nst larger companies be cause notices ca nnot be filed against bu sinesses with less than 10 employees. (§ 25249.11, subd. (b).) In any event, the version of Appendix A attache d to EHA’s orig inal notice pro vided the requisite summary of the Act’ s implementin g regulations and d irecti ons to more for mal authority.

23 facilitating informat ion exchange b y giving Panch o Villa’s a basic ov erview of Proposition 65 and directing it to “ more specific g uidance on compli ance.” Furthermore, as Pa ncho Villa’s ac knowledges, ne ither the A ct nor its implementing regul ations specify t hat the most current version must be attached to a party’ s notice of violation. Proposi tion 65 itself simply requires that “the notice of t he alleged viol ation shall include a certificate of merit.” (§ 25249.7, subd. (d)(1).) Bec ause Califo rnia voters, the Legislature and OEHHA have not re quired the curre nt version, or any specific version, of Appendix A, it woul d be contrary to the statute’ s remedial p urpose to invalidate a Proposi tion 65 action brought in the public interest beca use a notice attached an e arlier version of OEHHA’s su mmary of Propositi on 65. In granting Pancho Villa’s motion for ju dgment on the pleadings, the trial court noted tha t Appendix A attached to Pa ncho Villa’s notice w as superseded by a Ma y 2017 revisio n. In the court’ s reading, the May 2017 revision contained “additional info rmation regarding: a grace period, businesses wit h 9 or fewer em ployees, e xposure to natu rally occurring chemicals in food (p articularly rele vant here), and speci al compliance procedur e for a priv ate party actio n based on specified types of exposures.” While th e trial cour t is correct that the May 2017 revision c ontained this additional info rmation, there is no evide nce in the record the informa tion was “particularly releva nt here, ” as Pancho Villa’s a sserts in its responde nt’s brief. Pancho Villa’ s makes no argume nt the o mitted information was applicable to the ex posures alleged by EHA. The only case t he parties cite addressing the Appendix A requirement is Kintetsu, supra, 150 Cal.App.4 th 953. There, however, th e noticing entit y completely failed to attach Append ix A. (Id. at p p. 973–97 4 [the noticing entity’s “failure to fo llow this requireme nt renders the n otice . . . invalid

24 because the notice f ails to satisfy a mandatory pr erequisite to a citiz en lawsuit.” ].) There is no such failure here. DISPOSITION The judgment i s reversed. T he matter i s remanded with dir ections to the trial court to vac ate its order gr anting Pancho Villa’s motion for jud gment on the pleadings an d enter a new o rder denying it. EHA is entitled to reco ver its costs on appeal. (Cal. Rules of C ourt, rule 8.278(a)(1), (2).) DO, J. WE CONCUR: M C CONNELL, P. J. BUCHANAN, J.