Preview
UN
SUPERIOR COURT OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Document Scanning Lead Sheet
Aug-30-2013 3:39 pm
Case Number: CGC-13-533956
Filing Date: Aug-30-2013 3:36
Filed by: MARYANN E. MORAN
Juke Box: 001 Image: 04185506
COMPLAINT
WHITNEY R LEEMAN PHD VS. DEAN DISTRIBUTORS, INC et al
001004185506
Instructions:
Please place this sheet on top of the document to be scanned.SUM-100
(cr SUMM IONS. ‘AL) (S0L0 Pata USO DE ta CORTE)
NOTICE TO DEFENDANT:
(AVISO AL DEMANDADO):
DEAN DISTRIBUTORS, INC.; and DOES 1-150, inclusive,
YOU ARE BEING SUED BY PLAINTIFF:
(LO ESTA DEMANDANDO EL DEMANDANTE):
WHITNEY R. LEEMAN, PH.D.
NOTICE! You have been sued The court may decide against you without your being heard unless you respond within 30 days. Read the information
below.
‘You have 30 CALENDAR DAYS atter this summons and legal papers are served on you to file a written response at this court and have a copy
served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your
case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts
Online Self-Help Center (www courtinfo ca gov/selthelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask
the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property
may be taken without further warning from the court
There are other legal requirements. You may want to call an attorney right away If you do not know an attorney, you may want to call an attorney
referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate
these nonprofit groups at the California Legal Services Web site (www /awhelpcalifornia org), the California Courts Online Self-Help Center
(www courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and
costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case.
JAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su version Lea la informacion a
continuacién
Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién y papeles legales para presentar una respuesta por escrito en esta
corte y hacer que se entregue una copia al demandante Una carta 0 una llamada telefénica no lo protegen Su respuesta por escrito tiene que estar
en formato legal correcto si desea que procesen su caso en la corte Es posible que haya un formulario que usted pueda usar para su respuesta.
Puede encontrar estos formularios de la corte y mas informacién en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la
bibliotecs de leyes de su condado o en la corte que le quede mas cerca Si no puede pagar la cuota de presentacién, pida al secretario de la corte
que fe dé un formulario de exencién de pago de cuctas Si no presenta su respuesta a tiempo, puede perder e! caso por incumplimiento y la corte le
podré quitar su sueldo, dinero y bienes sin més advertencia
Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente Sino conoce a un abogado, puede llamar a un servicio de
remisiOn a abogados. Si no puede pagar a un abogado, es posible que cumpla con ios requisitos para obtener servicios legales gratuitos de un
programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services,
(www lawhelpcalifornia.org), en ef Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) 0 poniéndose en contacto con la corte 0 el
colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre
cualquier recuperacién de $10,000 6 mas de valor recibida mediante un acuerdo 0 una concesién de arbitraje en un caso de derecho civil Tiene que
pagar el gravamen de la corte antes de que la corte pueda desechar el caso
7 - 533 oF
The name and address of the court is: LEC, 13-
(El nombre y direccién de la corte es):
San Francisco County Superior Court
400 McAllister St., San Francisco, CA 94102
The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is.
(El nombre, la direccién y el nimero de teléfono del abogado del demandante, o de! demandante que no tiene abogado, es):
Clifford A. Chanler (SBN 135534), THE CHANLER GROUP, 2560 Ninth St., 4, Berkeley, CA 94710
DATE: August 30, 2013 CLERK OF THE COURT... by
(Fecha) (Secretario),
Uae BIS.Ze esta citation use ef formularo Proot of Service of Summons, (POS-010)
9 ¢e<) NOTICE TO THE PERSON SERVED: You are served
1 as an individual defendant.
as the person sued under the fictitious name of (specify).
on behalf of (specify):
under: [] CCP 416.10 (corporation) CCP 416.60 (minor)
(--] CCP 416.20 (defunct corporation) (--] CCP 416.70 (conservatee)
CCP 416.40 (association or partnership) CCP 416.90 (authorized person)
other (specify):
4 by personal delivery on (date)
Page soft
Tom Adopted for Mandatory Use SUMMONS Procedure 641220, 466,
Judical Couns! of ‘wwe courtnfo ca gov
SUM-100 [Rev July 1, 2008) eee
JAmencan Legaitiet, Inc |
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FILED
Supeps -010
Peitieg® "Chanter, State Bar Nor 135834 0 COUN FRR CUTE ORT A NCISCO
THE CHANLER GROUP elev, CA 94710
2560 Ninth Street, Suite 214, Berkeley, CA 9471 .
Berkeley, CA 94710 2013 AUG 30 PM 3: 47
TELEPHONE NO G 10) 848-8880 FAX HO (540) 848-8118
ATTORNEY FOR (Name): Plaintiff, Whitney R. Leeman, Ph.D.
SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco
street aporess: 400 McAllister Street
MAILING ADDRESS.
civ anozp cove: San Francisco, CA 94102
srancu vawe. Unlimited Civil
‘CASE NAME:
Leeman y. Dean Distributors, Inc., et al.
CIVIL CASE COVER SHEET Complex Case Designation et e
(1 untimitea Limited Count Joind ¢ 13-533 9 516
(Amount (Amount ‘ounter oinder Speen
demanded demanded is. Filed with first appearance by defendant
exceeds $25,000) _ $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT:
items 1-6 below must be completed (see instructions on page 2).
1. Check one box below for the case type that best describes this case:
Auto Tort Contract Provisionally Complex Civil Litigation
‘Auto (22) Breach of contractiwarranty (06) (Cal. Rules of Court, rules 3.400-3.403)
Uninsured motorist (46) Rule 3.740 collections (09) AntitrusuTrade regulation (03)
Other PUPD/WD (Personal Injury/Property Other collections (09) Construction defect (10)
DamageMWrongful Death) Tort Insurance coverage (18) Mass tort (40)
Asbestos (04) 1 other contract (37) Securities litigation (28)
Product liability (24) Real Property Environmental/Toxic tort (30)
Medical malpractice (45) Eminent domain/Inverse Insurance coverage claims arising from the
Other PIPD/WD (23) condemnation (14) above listed provisionally complex case
Non-Pl/PDAWD (Other) Tort TJ wrongful eviction (33) ‘pes (41)
LJ Business tort/unfair business practice (07) Other real property (26) Enforcoment of Judgment
Civil rights (08) Unlawful Detainer Enforcement of judgment (20)
Defamation (13) Commercial (31) Miscellaneous Civil Complaint
Fraud (16) LJ Residential (32) C2) rico 7)
Intellectual property (19) Drugs (38) ¥ } Other complaint (not specified above) (42)
Professional negligence (25) Judicial Review Miscellaneous Civil Petition
Other non-PI/PD/WD tort (35) Asset forfeiture (05) Partnership and corporate governance (21)
Employment Petition re: arbitration award (11) [—] other petition (not specified above) (43)
‘Wrongful termination (36) Writ of mandate (02)
Other employment (15) Other judicial review (39)
2. This case is [LY Jisnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the
factors requiring exceptional judicial management
a Large number of separately represented parties d [__] Large number of witnesses
b. Extensive motion practice raising difficult or novel__e. [__] Coordination with related actions pending in one or more courts
issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court
©. Substantial amount of documentary evidence +. [7] substantial postjudgment judicial supervision
3. Remedies sought (check all that apply): a] monetary _b.[¥] nonmonetary; declaratory or injunctive relief. [__] punitive
4. Number of causes of action (specify): One (1)
5. Thiscase [_Jis [¥Jisnot a class action suit.
6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.)
Date: August 30, 2013
Clifford A. Chanler
(RPE OR PRT NAMED ana ager OR FARTV
NOTICE
* Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed
under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result
in sanctions.
* File this cover sheet in addition to any cover sheet required by local court rule.
* If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all
other parties to the action or proceeding.
* Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. i
age 1 of:
orm doped or Mandatoy Use Ca Rales ct Coun ties 50.9970, 3400-9 403.3 769,
Judicial Council of Califomia CIVIL CASE COVER SHEET ‘Cal Standards of Judiaai Administration, std 310
svn coustato.ca gov
‘CM-010 [Rev July 1, 2007)1
INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET M-010
To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must
complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile
statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet In item 1, you must check
‘one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1,
check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action.
To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover
sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party,
its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court
To Parties in Rule 3.740 Collections Cases. A “collections case” under rule 3.740 is defined as an action for recovery of money
cowed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in
which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort
damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of
attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general
time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections
case will be subject to the requirements for service and obtaining a judgment in rule 3 740.
To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the
case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by
completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the
complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the
plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that
the case is complex
Auto Tort
Auto (22)-Personal Injury/Property
DamageMWrongful Death
Uninsured Motorist (46) Of the
case volves an uninsured
motorist claim subject t0
arbitration, check ths item
msteat! of Auto)
Other PUPDAWD (Personal Injury!
Property Damage/Wrongful Death)
Tort
Asbestos (04)
Asbestos Property Damage
Asbestos Personal Injury!
‘Wrongtul Death
Product rability (not asbestos or
toxic/environmenital} (24)
Medical Malpractice (45)
Medical Malpractice—
Physicians & Surgeons
Other Professional Health Care
Malpractice
Other PUPDAWD (23)
Premises Liability (e.g. slip
and fat)
Intentional Bodily Injury/PD/WD
(e.g., assault, vandalism)
Intentional infliction of
Emotional Distress
Negligent Infliction of
Emotional Distress
Other PUPD/WD
Non-Pl/PDAWD (Other) Tort
Business Tort/Unfair Business
Practice (07)
Givil Rights (e.g., discrimination,
false arrest) (not crv!
harassment} (08)
Defamation (e.g , stander, fibel)
13)
Fraud (16)
Intellectual Property (19)
Professional Negligence (25)
Legal Maipractice
Other Professional Malpractice
(not medical or iegal}
Other Non-PI/PD/WD Tort (35)
Employment
‘Wrongful Termination (36)
Other Employment (15)
CASE TYPES AND EXAMPLES
Contract
Breach of ContraclWarranty (06)
Breach of Rental/Lease
Contract (not unlawful detainer
c+ wrongful eviction)
ContracuWarranty Breach—Seller
Plaintiff (not fraud or negligence)
Negligent Breach of Contracl
Warranty
Other Breach of ContracWWarranty
Collections (e.g., money owed, open
book accounts) (09)
Coltection Case--Seller Plaintiff
Other Promissory Note/Collections
Case
Insurance Coverage (not provisionally
complex) (18)
Auto Subrogation
Other Coverage
Other Contract (37)
Contractuat Fraud
Other Contract Dispute
Real Proporty
Eminent Domain/inverse
Condemnation (14)
Wrongful Eviction (33)
Other Real Property (eg. quiet title) 126)
‘Writ of Possession of Real Property
Mortgage Foreclosure
Quiet Title
Other Real Property (not eminent
domain, landiordtenant, or
foreclosure)
Unlawful Detainer
‘Commercial (31)
Residential (32)
Drugs (38) (i th
rugs, che
repoit as
Judicial Review
Asset Forfeiture (05)
Pention Re: Arbitration Award (11)
Writ of Mandate (02)
Wat-Administratwe Mandamus
Wiit-Mandamus on Limited Court
Case Matter
Writ-Other Limited Court Case
Review
Other Judicial Review (39)
Review of Health Officer Order
Notice of Appeal-Labor
Commissioner Appeals
Provisionally Complex Civil Litigation (Cal.
Rules of Court Rules 3.400-3.403)
Antitrust/Trade Regulation (03)
Construction Defect (10)
Ciaims Involving Mass Tort (40)
Securities Litigation (28)
Environmental/Toxic Tort (30)
Insurance Coverage Claims
(arising from provisionally complex
case type listed above) (41)
Enforcement of Judgment
Enforcement of Judgment (20)
‘Abstract of Judgment (Out of
County)
Confession of Judgment (non-
domestic relations)
Sister State Judgment
Administrative Agency Award
(not unpaid taxes)
Petition/Certification ot Entry of
Judgment on Unpaid Taxes
Other Enforcement of Judgment
Case
Miscellaneous Civil Complaint
RICO (27)
Other Complaint (net specified!
above) (42)
Declaratory Retief Only
Injunctive Relief Only (non-
harassinent)
Mechanics Lien
Other Commercial Complaint
Case (non-tor/non-complex)
Other Civit Complaint
(non-tor¢non-complex)
Miscellaneous Civil Petition
Partnership and Corporate
Governance (21)
Other Petition (nar specified
above) (43)
Civil Harassment
Workplace Violence
Eider/Dependent Adult
Abuse
Election Contest
Petion for Name Change
Petition for Relief From Late
Claim
Other Civil Petition
‘Cx-010 (Rev July 1, 2007}
CIVIL CASE COVER SHEET
Page 2 of?Clifford A. Chanler, State Bar No. 135534
Josh Voorhees, State Bar No. 241436 SUMMONS ISSUED
THE CHANLER GROUP
2560 Ninth Street San Francisco County Superior Court
Parker Plaza, Suite 214
Berkeley, CA 94710-2565 AUG 3 0 2013
Telephone: (510) 848-8880
Facsimile: (510) 848-8118 Re K THE COURT
Attorneys for Plaintiff By: Deputy Clerk
WHITNEY R. LEEMAN, PH.D.
M.A. MORAN
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
UNLIMITED CIVIL JURISDICTION
CGC 13-533956
WHITNEY R. LEEMAN, PH.D., Case No. _
Plaintiff,
| COMPLAINT FOR CIVIL PENALTIES
v. | AND INJUNCTIVE RELIEF
DEAN DISTRIBUTORS, INC.; and DOES 1- |
150, inclusive, | (Health & Safety Code. § 25249.6 et seq.)
Defendants. |
'T FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFYW oN
NATURE OF THE ACTION
1. ‘This Complaint is a representative action brought by plaintiff WHITNEY R.
LEEMAN, Ph.D. in the public interest of the citizens of the State of California to enforce the
People’s right to be informed of the presence of a carcinogenic chemical known as
4-Methylimidazole (“4-MEI”) found in certain food extracts, flavors, and colorings sold by
defendants in California.
2. By this Complaint, plaintiff seeks to remedy defendants’ continuing failure to warn
California citizens about the risk of exposure to 4-MEI, a cancer-causing chemical present in food
extracts, flavors, and colorings manufactured, distributed, and offered for sale or use to consumers
throughout the State of California.
3. Detectable levels of 4-MEI are commonly found in food extracts, flavors, and
colorings that defendants manufacture, distribute, and offer for sale to consumers throughout the
State of California.
4. Under the Safe Drinking Water and Toxic Enforcement Act of 1986, codified at
Health and Safety Code § 25249.6 et seq. (“Proposition 65”), “[nJo 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...” Health & Safety Code § 25249.6.
5. Pursuant to Proposition 65, on January 7, 2011, California identified and listed 4-MEI
as a chemical known to cause cancer. 4-MEI became subject to the “clear and reasonable warning”
requirements of the act one year later on January 7, 2012. Cal. Code Regs. tit. 27, § 27001(b);
Health & Safety Code §§ 25249.8 & 25249.10(b).
6. Defendants manufacture, distribute, sell and offer for sale food extracts, flavors, and
colorings containing 4-MEI at levels that require a warning under Proposition 65 including, but not
limited to, the Sierra Brand Premium Products Imitation Maple Flavor, #011031 (#8 40825 00122
2). All such food extracts, flavors, and colorings containing 4-ME] are referred to collectively
hereinafter as “PRODUCTS.”
COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF —7. Defendants’ failure to warn consumers and other individuals and workers
(specifically those not subject to California’s Occupational Health Act, Labor Code section 6300 et
seq. or exempted under the out-of-state manufacturer rule) in the state of California about their
exposure to 4-ME]I in conjunction with defendants’ sale of the PRODUCTS is a violation of
Proposition 65, and subjects defendants to enjoinment of such conduct as well as civil penalties for
each violation. Health & Safety Code § 25249.7(a) & (b)(1).
8. For defendants’ violations of Proposition 65, plaintiff secks preliminary and
permanent injunctive relief to compel defendants to provide purchasers or consumers of the
PRODUCTS with the required warning regarding the health hazards of 4-MEI. Health & Safety
Code § 25249.7(a).
9. Pursuant to Health and Safety Code § 25249.7(b), plaintiff also seeks civil penalties
against defendants for their violations of Proposition 65.
PARTIES
10. Plaintiff WHITNEY R. LEEMAN, Ph.D. is a citizen of the state of California who is
dedicated to protecting the health of California citizens through the elimination or reduction of toxic
exposures from consumer products and she brings this action in the public interest pursuant to
Health and Safety Code § 25249.7(d).
11. Defendant DEAN DISTRIBUTORS, INC. (“DEAN”) is a person in the course of
doing business within the meaning of Health and Safety Code § 25249.11(b).
12. DEAN offers the PRODUCTS for sale in the state of California without a “clear and
reasonable warning.”
13. Defendants DOES 1-50 (“MANUFACTURER DEFENDANTS”) are each persons in
the course of doing business within the meaning of Health and Safety Code section 25249.11.
14. MANUFACTURER DEFENDANTS research, test, design, assemble, fabricate, and
manufacture, or imply by their conduct that they research, test, design, assemble, fabricate, and
manufacture one or more of the PRODUCTS offered for sale or use in the State of California.
COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFau a
15. Defendants DOES 51-100 (“DISTRIBUTOR DEFENDANTS”) are each a person in
the course of doing business within the meaning of Health and Safety Code section 25249.11.
16. DISTRIBUTOR DEFENDANTS distribute, exchange, transfer, process, and/or
transport one or more of the PRODUCTS to individuals, businesses, or retailers for sale or use in
the State of California.
17. Defendants DOES 101-150 (“RETAILER DEFENDANTS?) are each a person in the
course of doing business within the meaning of Health and Safety Code section 25249.11.
18. RETAILER DEFENDANTS offer the PRODUCTS for sale to individuals in the State
of California.
19. At this time, the true names of defendants DOES 1 through 150, inclusive, are
unknown to plaintiff, who, therefore, sues said defendants by their fictitious names pursuant to
Code of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges,
that each of the fictitiously named defendants is responsible for the acts and occurrences alleged
herein. When ascertained, their true names shall be reflected in an amended complaint.
20. DEAN, MANUFACTURER DEFENDANTS, DISTRIBUTOR DEFENDANTS, and
RETAILER DEFENDANTS are collectively referred to herein as “DEFENDANTS.”
VENUE AND JURISDICTION
21. Venue is proper in the San Francisco County Superior Court, pursuant to Code of
Civil Procedure §§ 393, 395, and 395.5, because this Court is a court of competent jurisdiction,
because plaintiff seeks civil penalties against DEFENDANTS, because one or more instances of
wrongful conduct occurred, and continue to occur, in San Francisco County, and/or because
DEFENDANTS conducted, and continues to conduct, business in this county with respect to the
PRODUCTS.
22. The California Superior Court has jurisdiction over this action pursuant to California
Constitution Article V1, § 10, which grants the Superior Court “original jurisdiction in all causes
except those given by statute to other trial courts.” The statute under which this action is brought
does not specify any other basis of subject matter jurisdiction.
~ COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF23. The California Superior Court has jurisdiction over DEFENDANTS based on
plaintiff's information and good faith belief that each defendant is a person, firm, corporation or
association that is a citizen of the state of California, has sufficient minimum contacts in the state of
California, and/or otherwise purposefully avails itself of the California market. DEFENDANTS’
purposeful availment renders the exercise of personal jurisdiction by California courts over
DEFENDANTS consistent with traditional notions of fair play and substantial justice.
FIRST CAUSE OF ACTION
(Violation of Proposition 65 - Against All Defendants)
24. Plaintiff realleges and incorporates by reference, as if fully set forth herein,
Paragraphs 1 through 23, inclusive.
25. In enacting Proposition 65, in the preamble to the Safe Drinking Water and Toxic
Enforcement Act of 1986, the People of California expressly declared their right “[t]o be informed
about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.”
26. Proposition 65 states, “[nJo 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 . ..”
Health & Safety Code § 25249.6.
27. On June 14, 2013, plaintiff's sixty-day notice of violation—together with the
certificate of merit required by Health & Safety Code § 25249.7(d)(1)—was served on DEAN and
the requisite public prosecutors pursuant to California Code of Regulations title 27, § 25903(c)(3),
stating that, as a result of DEFENDANTS’ sales of the PRODUCTS containing 4-MEI, purchasers
and consumers in the state of California were being exposed to 4-MEI resulting from their
reasonably foreseeable use and consumption of the PRODUCTS, without having been provided
with a “clear and reasonable warning” regarding such toxic exposures, as required by Proposition
65.
~ COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF28. DEFENDANTS have engaged in the manufacture, distribution, sale, and offering of
the PRODUCTS for sale or consumption in violation of Health and Safety Code § 25249.6, and
DEFENDANTS’ violations have continued to occur beyond their receipt of plaintiff's sixty-day
notice of violation. As such, DEFENDANTS’ violations are ongoing and continuous in nature, and
will continue to occur in the future.
29. After receiving the claims asserted in the sixty-day notice of violation, the appropriate
public enforcement agencies have failed to commence and diligently prosecute a cause of action
against DEFENDANTS under Proposition 65.
30. The PRODUCTS manufactured, imported, distributed, sold, and offered for sale or
use in California by DEFENDANTS contain 4-MEI such that it requires a “clear and reasonable”
warning under Proposition 65.
31. DEFENDANTS knew or should have known that the PRODUCTS they manufacture,
import, distribute, sell, and offer for sale or use in California contain 4-MEI.
32. 4-MELis present in the PRODUCTS in such a way as to expose individuals to 4-MEIT
through ingestion during reasonably foreseeable use of the PRODUCTS including through
workplace exposure of the PRODUCTS.
33. ‘The normal and reasonably foreseeable consumption of the PRODUCTS has caused,
and continues to cause, consumer exposures to 4-MEI, as such exposures are defined by California
Code of Regulations title 27, § 25602(b).
34. DEFENDANTS have actual and/or constructive knowledge that the normal and
reasonably foreseeable consumption of the PRODUCTS would ultimately expose individuals to 4-
MEI through ingestion.
35. | DEFENDANTS intended that such exposures to 4-MEI from the reasonably
foreseeable consumption of the PRODUCTS would occur by DEFENDANTS’ deliberate, non-
accidental participation in the manufacture, importation, distribution, sale, and/or offering of the
PRODUCTS for sale to individuals in the state of California.
COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF36. DEFENDANTS failed to provide a “clear and reasonable warning” to those
consumers and other individuals in the state of California who were or who would become exposed
to 4-MEI through ingestion during the consumption of the PRODUCTS including through
workplace exposure to the PRODUCTS.
37. Contrary to the express policy and statutory prohibition of Proposition 65 enacted
directly by California voters, individuals exposed to 4-MEI through ingestion resulting from the
consumption of the PRODUCTS including through workplace exposure to the PRODUCTS sold by
DEFENDANTS without a “clear and reasonable warning,” have suffered, and continue to suffer,
irreparable harm for which they have no plain, speedy, or adequate remedy at law.
38. Pursuant to Health and Safety Code § 25249.7(b), as a consequence of the above-
described acts, DEFENDANTS are liable for a maximum civil penalty of $2,500 per day for each
violation.
39. As aconsequence of the above-described acts, Health and Safety Code § 25249.7(a)
also specifically authorizes the Court to grant injunctive relief against DEFENDANTS.
COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFon aA Ww
PRAYER FOR RELIEF
Wherefore, plaintiff prays for judgment against defendants as follows:
1 That the Court, pursuant to Health and Safety Code § 25249.7(b), assess civil
penalties against DEFENDANTS in the amount of $2,500 per day for each violation;
2. That the Court, pursuant to Ilealth and Safety Code § 25249.7(a), preliminarily and
permanently enjoin DEFENDANTS from preparing, distributing, or offering the PRODUCTS for
sale or consumption in California without first providing a “clear and reasonable warning” as
defined by California Code of Regulations title 27, § 25601 et seq., as to the harms associated with
exposures to 4-MEI;
3. That the Court, pursuant to Health and Safety Code § 25249.7(a), issue preliminary
and permanent injunctions mandating that DEFENDANTS recall all PRODUCTS currently in the
chain of commerce in California without a “clear and reasonable warning” as defined by California
Code of Regulations title 27, § 25601 et seq.
4. That the Court grant plaintiff her reasonable attorneys’ fees and costs of suit; and
5. That the Court grant such other and further relief as may be just and proper.
Dated: August 30, 2013 Respectfully Submitted,
THE CHANLER GROUP
eo
By: fd Ch _
Clifford A. Chanler
Attorneys for Plaintiff
WHITNEY R. LEEMAN, PH.D.
COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF
Preview
UN SUPERIOR COURT OF CALIFORNIA COUNTY OF SAN FRANCISCO Document Scanning Lead Sheet Aug-30-2013 3:39 pm Case Number: CGC-13-533956 Filing Date: Aug-30-2013 3:36 Filed by: MARYANN E. MORAN Juke Box: 001 Image: 04185506 COMPLAINT WHITNEY R LEEMAN PHD VS. DEAN DISTRIBUTORS, INC et al 001004185506 Instructions: Please place this sheet on top of the document to be scanned.SUM-100 (cr SUMM IONS. ‘AL) (S0L0 Pata USO DE ta CORTE) NOTICE TO DEFENDANT: (AVISO AL DEMANDADO): DEAN DISTRIBUTORS, INC.; and DOES 1-150, inclusive, YOU ARE BEING SUED BY PLAINTIFF: (LO ESTA DEMANDANDO EL DEMANDANTE): WHITNEY R. LEEMAN, PH.D. NOTICE! You have been sued The court may decide against you without your being heard unless you respond within 30 days. Read the information below. ‘You have 30 CALENDAR DAYS atter this summons and legal papers are served on you to file a written response at this court and have a copy served on the plaintiff. A letter or phone call will not protect you. Your written response must be in proper legal form if you want the court to hear your case. There may be a court form that you can use for your response. You can find these court forms and more information at the California Courts Online Self-Help Center (www courtinfo ca gov/selthelp), your county law library, or the courthouse nearest you. If you cannot pay the filing fee, ask the court clerk for a fee waiver form. If you do not file your response on time, you may lose the case by default, and your wages, money, and property may be taken without further warning from the court There are other legal requirements. You may want to call an attorney right away If you do not know an attorney, you may want to call an attorney referral service. If you cannot afford an attorney, you may be eligible for free legal services from a nonprofit legal services program. You can locate these nonprofit groups at the California Legal Services Web site (www /awhelpcalifornia org), the California Courts Online Self-Help Center (www courtinfo.ca.gov/selfhelp), or by contacting your local court or county bar association. NOTE: The court has a statutory lien for waived fees and costs on any settlement or arbitration award of $10,000 or more in a civil case. The court's lien must be paid before the court will dismiss the case. JAVISO! Lo han demandado. Si no responde dentro de 30 dias, la corte puede decidir en su contra sin escuchar su version Lea la informacion a continuacién Tiene 30 DIAS DE CALENDARIO después de que le entreguen esta citacién y papeles legales para presentar una respuesta por escrito en esta corte y hacer que se entregue una copia al demandante Una carta 0 una llamada telefénica no lo protegen Su respuesta por escrito tiene que estar en formato legal correcto si desea que procesen su caso en la corte Es posible que haya un formulario que usted pueda usar para su respuesta. Puede encontrar estos formularios de la corte y mas informacién en el Centro de Ayuda de las Cortes de California (www.sucorte.ca.gov), en la bibliotecs de leyes de su condado o en la corte que le quede mas cerca Si no puede pagar la cuota de presentacién, pida al secretario de la corte que fe dé un formulario de exencién de pago de cuctas Si no presenta su respuesta a tiempo, puede perder e! caso por incumplimiento y la corte le podré quitar su sueldo, dinero y bienes sin més advertencia Hay otros requisitos legales. Es recomendable que llame a un abogado inmediatamente Sino conoce a un abogado, puede llamar a un servicio de remisiOn a abogados. Si no puede pagar a un abogado, es posible que cumpla con ios requisitos para obtener servicios legales gratuitos de un programa de servicios legales sin fines de lucro. Puede encontrar estos grupos sin fines de lucro en el sitio web de California Legal Services, (www lawhelpcalifornia.org), en ef Centro de Ayuda de las Cortes de California, (www.sucorte.ca.gov) 0 poniéndose en contacto con la corte 0 el colegio de abogados locales. AVISO: Por ley, la corte tiene derecho a reclamar las cuotas y los costos exentos por imponer un gravamen sobre cualquier recuperacién de $10,000 6 mas de valor recibida mediante un acuerdo 0 una concesién de arbitraje en un caso de derecho civil Tiene que pagar el gravamen de la corte antes de que la corte pueda desechar el caso 7 - 533 oF The name and address of the court is: LEC, 13- (El nombre y direccién de la corte es): San Francisco County Superior Court 400 McAllister St., San Francisco, CA 94102 The name, address, and telephone number of plaintiffs attorney, or plaintiff without an attorney, is. (El nombre, la direccién y el nimero de teléfono del abogado del demandante, o de! demandante que no tiene abogado, es): Clifford A. Chanler (SBN 135534), THE CHANLER GROUP, 2560 Ninth St., 4, Berkeley, CA 94710 DATE: August 30, 2013 CLERK OF THE COURT... by (Fecha) (Secretario), Uae BIS.Ze esta citation use ef formularo Proot of Service of Summons, (POS-010) 9 ¢e<) NOTICE TO THE PERSON SERVED: You are served 1 as an individual defendant. as the person sued under the fictitious name of (specify). on behalf of (specify): under: [] CCP 416.10 (corporation) CCP 416.60 (minor) (--] CCP 416.20 (defunct corporation) (--] CCP 416.70 (conservatee) CCP 416.40 (association or partnership) CCP 416.90 (authorized person) other (specify): 4 by personal delivery on (date) Page soft Tom Adopted for Mandatory Use SUMMONS Procedure 641220, 466, Judical Couns! of ‘wwe courtnfo ca gov SUM-100 [Rev July 1, 2008) eee JAmencan Legaitiet, Inc | )worw FormsWorkfow comBY Fax FILED Supeps -010 Peitieg® "Chanter, State Bar Nor 135834 0 COUN FRR CUTE ORT A NCISCO THE CHANLER GROUP elev, CA 94710 2560 Ninth Street, Suite 214, Berkeley, CA 9471 . Berkeley, CA 94710 2013 AUG 30 PM 3: 47 TELEPHONE NO G 10) 848-8880 FAX HO (540) 848-8118 ATTORNEY FOR (Name): Plaintiff, Whitney R. Leeman, Ph.D. SUPERIOR COURT OF CALIFORNIA, COUNTY OF San Francisco street aporess: 400 McAllister Street MAILING ADDRESS. civ anozp cove: San Francisco, CA 94102 srancu vawe. Unlimited Civil ‘CASE NAME: Leeman y. Dean Distributors, Inc., et al. CIVIL CASE COVER SHEET Complex Case Designation et e (1 untimitea Limited Count Joind ¢ 13-533 9 516 (Amount (Amount ‘ounter oinder Speen demanded demanded is. Filed with first appearance by defendant exceeds $25,000) _ $25,000 or less) (Cal. Rules of Court, rule 3.402) DEPT: items 1-6 below must be completed (see instructions on page 2). 1. Check one box below for the case type that best describes this case: Auto Tort Contract Provisionally Complex Civil Litigation ‘Auto (22) Breach of contractiwarranty (06) (Cal. Rules of Court, rules 3.400-3.403) Uninsured motorist (46) Rule 3.740 collections (09) AntitrusuTrade regulation (03) Other PUPD/WD (Personal Injury/Property Other collections (09) Construction defect (10) DamageMWrongful Death) Tort Insurance coverage (18) Mass tort (40) Asbestos (04) 1 other contract (37) Securities litigation (28) Product liability (24) Real Property Environmental/Toxic tort (30) Medical malpractice (45) Eminent domain/Inverse Insurance coverage claims arising from the Other PIPD/WD (23) condemnation (14) above listed provisionally complex case Non-Pl/PDAWD (Other) Tort TJ wrongful eviction (33) ‘pes (41) LJ Business tort/unfair business practice (07) Other real property (26) Enforcoment of Judgment Civil rights (08) Unlawful Detainer Enforcement of judgment (20) Defamation (13) Commercial (31) Miscellaneous Civil Complaint Fraud (16) LJ Residential (32) C2) rico 7) Intellectual property (19) Drugs (38) ¥ } Other complaint (not specified above) (42) Professional negligence (25) Judicial Review Miscellaneous Civil Petition Other non-PI/PD/WD tort (35) Asset forfeiture (05) Partnership and corporate governance (21) Employment Petition re: arbitration award (11) [—] other petition (not specified above) (43) ‘Wrongful termination (36) Writ of mandate (02) Other employment (15) Other judicial review (39) 2. This case is [LY Jisnot complex under rule 3.400 of the California Rules of Court. If the case is complex, mark the factors requiring exceptional judicial management a Large number of separately represented parties d [__] Large number of witnesses b. Extensive motion practice raising difficult or novel__e. [__] Coordination with related actions pending in one or more courts issues that will be time-consuming to resolve in other counties, states, or countries, or in a federal court ©. Substantial amount of documentary evidence +. [7] substantial postjudgment judicial supervision 3. Remedies sought (check all that apply): a] monetary _b.[¥] nonmonetary; declaratory or injunctive relief. [__] punitive 4. Number of causes of action (specify): One (1) 5. Thiscase [_Jis [¥Jisnot a class action suit. 6. If there are any known related cases, file and serve a notice of related case. (You may use form CM-015.) Date: August 30, 2013 Clifford A. Chanler (RPE OR PRT NAMED ana ager OR FARTV NOTICE * Plaintiff must file this cover sheet with the first paper filed in the action or proceeding (except small claims cases or cases filed under the Probate Code, Family Code, or Welfare and Institutions Code). (Cal. Rules of Court, rule 3.220.) Failure to file may result in sanctions. * File this cover sheet in addition to any cover sheet required by local court rule. * If this case is complex under rule 3.400 et seq. of the California Rules of Court, you must serve a copy of this cover sheet on all other parties to the action or proceeding. * Unless this is a collections case under rule 3.740 or a complex case, this cover sheet will be used for statistical purposes only. i age 1 of: orm doped or Mandatoy Use Ca Rales ct Coun ties 50.9970, 3400-9 403.3 769, Judicial Council of Califomia CIVIL CASE COVER SHEET ‘Cal Standards of Judiaai Administration, std 310 svn coustato.ca gov ‘CM-010 [Rev July 1, 2007)1 INSTRUCTIONS ON HOW TO COMPLETE THE COVER SHEET M-010 To Plaintiffs and Others Filing First Papers. If you are filing a first paper (for example, a complaint) in a civil case, you must complete and file, along with your first paper, the Civil Case Cover Sheet contained on page 1. This information will be used to compile statistics about the types and numbers of cases filed. You must complete items 1 through 6 on the sheet In item 1, you must check ‘one box for the case type that best describes the case. If the case fits both a general and a more specific type of case listed in item 1, check the more specific one. If the case has multiple causes of action, check the box that best indicates the primary cause of action. To assist you in completing the sheet, examples of the cases that belong under each case type in item 1 are provided below. A cover sheet must be filed only with your initial paper. Failure to file a cover sheet with the first paper filed in a civil case may subject a party, its counsel, or both to sanctions under rules 2.30 and 3.220 of the California Rules of Court To Parties in Rule 3.740 Collections Cases. A “collections case” under rule 3.740 is defined as an action for recovery of money cowed in a sum stated to be certain that is not more than $25,000, exclusive of interest and attorney's fees, arising from a transaction in which property, services, or money was acquired on credit. A collections case does not include an action seeking the following: (1) tort damages, (2) punitive damages, (3) recovery of real property, (4) recovery of personal property, or (5) a prejudgment writ of attachment. The identification of a case as a rule 3.740 collections case on this form means that it will be exempt from the general time-for-service requirements and case management rules, unless a defendant files a responsive pleading. A rule 3.740 collections case will be subject to the requirements for service and obtaining a judgment in rule 3 740. To Parties in Complex Cases. In complex cases only, parties must also use the Civil Case Cover Sheet to designate whether the case is complex. If a plaintiff believes the case is complex under rule 3.400 of the California Rules of Court, this must be indicated by completing the appropriate boxes in items 1 and 2. If a plaintiff designates a case as complex, the cover sheet must be served with the complaint on all parties to the action. A defendant may file and serve no later than the time of its first appearance a joinder in the plaintiffs designation, a counter-designation that the case is not complex, or, if the plaintiff has made no designation, a designation that the case is complex Auto Tort Auto (22)-Personal Injury/Property DamageMWrongful Death Uninsured Motorist (46) Of the case volves an uninsured motorist claim subject t0 arbitration, check ths item msteat! of Auto) Other PUPDAWD (Personal Injury! Property Damage/Wrongful Death) Tort Asbestos (04) Asbestos Property Damage Asbestos Personal Injury! ‘Wrongtul Death Product rability (not asbestos or toxic/environmenital} (24) Medical Malpractice (45) Medical Malpractice— Physicians & Surgeons Other Professional Health Care Malpractice Other PUPDAWD (23) Premises Liability (e.g. slip and fat) Intentional Bodily Injury/PD/WD (e.g., assault, vandalism) Intentional infliction of Emotional Distress Negligent Infliction of Emotional Distress Other PUPD/WD Non-Pl/PDAWD (Other) Tort Business Tort/Unfair Business Practice (07) Givil Rights (e.g., discrimination, false arrest) (not crv! harassment} (08) Defamation (e.g , stander, fibel) 13) Fraud (16) Intellectual Property (19) Professional Negligence (25) Legal Maipractice Other Professional Malpractice (not medical or iegal} Other Non-PI/PD/WD Tort (35) Employment ‘Wrongful Termination (36) Other Employment (15) CASE TYPES AND EXAMPLES Contract Breach of ContraclWarranty (06) Breach of Rental/Lease Contract (not unlawful detainer c+ wrongful eviction) ContracuWarranty Breach—Seller Plaintiff (not fraud or negligence) Negligent Breach of Contracl Warranty Other Breach of ContracWWarranty Collections (e.g., money owed, open book accounts) (09) Coltection Case--Seller Plaintiff Other Promissory Note/Collections Case Insurance Coverage (not provisionally complex) (18) Auto Subrogation Other Coverage Other Contract (37) Contractuat Fraud Other Contract Dispute Real Proporty Eminent Domain/inverse Condemnation (14) Wrongful Eviction (33) Other Real Property (eg. quiet title) 126) ‘Writ of Possession of Real Property Mortgage Foreclosure Quiet Title Other Real Property (not eminent domain, landiordtenant, or foreclosure) Unlawful Detainer ‘Commercial (31) Residential (32) Drugs (38) (i th rugs, che repoit as Judicial Review Asset Forfeiture (05) Pention Re: Arbitration Award (11) Writ of Mandate (02) Wat-Administratwe Mandamus Wiit-Mandamus on Limited Court Case Matter Writ-Other Limited Court Case Review Other Judicial Review (39) Review of Health Officer Order Notice of Appeal-Labor Commissioner Appeals Provisionally Complex Civil Litigation (Cal. Rules of Court Rules 3.400-3.403) Antitrust/Trade Regulation (03) Construction Defect (10) Ciaims Involving Mass Tort (40) Securities Litigation (28) Environmental/Toxic Tort (30) Insurance Coverage Claims (arising from provisionally complex case type listed above) (41) Enforcement of Judgment Enforcement of Judgment (20) ‘Abstract of Judgment (Out of County) Confession of Judgment (non- domestic relations) Sister State Judgment Administrative Agency Award (not unpaid taxes) Petition/Certification ot Entry of Judgment on Unpaid Taxes Other Enforcement of Judgment Case Miscellaneous Civil Complaint RICO (27) Other Complaint (net specified! above) (42) Declaratory Retief Only Injunctive Relief Only (non- harassinent) Mechanics Lien Other Commercial Complaint Case (non-tor/non-complex) Other Civit Complaint (non-tor¢non-complex) Miscellaneous Civil Petition Partnership and Corporate Governance (21) Other Petition (nar specified above) (43) Civil Harassment Workplace Violence Eider/Dependent Adult Abuse Election Contest Petion for Name Change Petition for Relief From Late Claim Other Civil Petition ‘Cx-010 (Rev July 1, 2007} CIVIL CASE COVER SHEET Page 2 of?Clifford A. Chanler, State Bar No. 135534 Josh Voorhees, State Bar No. 241436 SUMMONS ISSUED THE CHANLER GROUP 2560 Ninth Street San Francisco County Superior Court Parker Plaza, Suite 214 Berkeley, CA 94710-2565 AUG 3 0 2013 Telephone: (510) 848-8880 Facsimile: (510) 848-8118 Re K THE COURT Attorneys for Plaintiff By: Deputy Clerk WHITNEY R. LEEMAN, PH.D. M.A. MORAN SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO UNLIMITED CIVIL JURISDICTION CGC 13-533956 WHITNEY R. LEEMAN, PH.D., Case No. _ Plaintiff, | COMPLAINT FOR CIVIL PENALTIES v. | AND INJUNCTIVE RELIEF DEAN DISTRIBUTORS, INC.; and DOES 1- | 150, inclusive, | (Health & Safety Code. § 25249.6 et seq.) Defendants. | 'T FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFYW oN NATURE OF THE ACTION 1. ‘This Complaint is a representative action brought by plaintiff WHITNEY R. LEEMAN, Ph.D. in the public interest of the citizens of the State of California to enforce the People’s right to be informed of the presence of a carcinogenic chemical known as 4-Methylimidazole (“4-MEI”) found in certain food extracts, flavors, and colorings sold by defendants in California. 2. By this Complaint, plaintiff seeks to remedy defendants’ continuing failure to warn California citizens about the risk of exposure to 4-MEI, a cancer-causing chemical present in food extracts, flavors, and colorings manufactured, distributed, and offered for sale or use to consumers throughout the State of California. 3. Detectable levels of 4-MEI are commonly found in food extracts, flavors, and colorings that defendants manufacture, distribute, and offer for sale to consumers throughout the State of California. 4. Under the Safe Drinking Water and Toxic Enforcement Act of 1986, codified at Health and Safety Code § 25249.6 et seq. (“Proposition 65”), “[nJo 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...” Health & Safety Code § 25249.6. 5. Pursuant to Proposition 65, on January 7, 2011, California identified and listed 4-MEI as a chemical known to cause cancer. 4-MEI became subject to the “clear and reasonable warning” requirements of the act one year later on January 7, 2012. Cal. Code Regs. tit. 27, § 27001(b); Health & Safety Code §§ 25249.8 & 25249.10(b). 6. Defendants manufacture, distribute, sell and offer for sale food extracts, flavors, and colorings containing 4-MEI at levels that require a warning under Proposition 65 including, but not limited to, the Sierra Brand Premium Products Imitation Maple Flavor, #011031 (#8 40825 00122 2). All such food extracts, flavors, and colorings containing 4-ME] are referred to collectively hereinafter as “PRODUCTS.” COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF —7. Defendants’ failure to warn consumers and other individuals and workers (specifically those not subject to California’s Occupational Health Act, Labor Code section 6300 et seq. or exempted under the out-of-state manufacturer rule) in the state of California about their exposure to 4-ME]I in conjunction with defendants’ sale of the PRODUCTS is a violation of Proposition 65, and subjects defendants to enjoinment of such conduct as well as civil penalties for each violation. Health & Safety Code § 25249.7(a) & (b)(1). 8. For defendants’ violations of Proposition 65, plaintiff secks preliminary and permanent injunctive relief to compel defendants to provide purchasers or consumers of the PRODUCTS with the required warning regarding the health hazards of 4-MEI. Health & Safety Code § 25249.7(a). 9. Pursuant to Health and Safety Code § 25249.7(b), plaintiff also seeks civil penalties against defendants for their violations of Proposition 65. PARTIES 10. Plaintiff WHITNEY R. LEEMAN, Ph.D. is a citizen of the state of California who is dedicated to protecting the health of California citizens through the elimination or reduction of toxic exposures from consumer products and she brings this action in the public interest pursuant to Health and Safety Code § 25249.7(d). 11. Defendant DEAN DISTRIBUTORS, INC. (“DEAN”) is a person in the course of doing business within the meaning of Health and Safety Code § 25249.11(b). 12. DEAN offers the PRODUCTS for sale in the state of California without a “clear and reasonable warning.” 13. Defendants DOES 1-50 (“MANUFACTURER DEFENDANTS”) are each persons in the course of doing business within the meaning of Health and Safety Code section 25249.11. 14. MANUFACTURER DEFENDANTS research, test, design, assemble, fabricate, and manufacture, or imply by their conduct that they research, test, design, assemble, fabricate, and manufacture one or more of the PRODUCTS offered for sale or use in the State of California. COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFau a 15. Defendants DOES 51-100 (“DISTRIBUTOR DEFENDANTS”) are each a person in the course of doing business within the meaning of Health and Safety Code section 25249.11. 16. DISTRIBUTOR DEFENDANTS distribute, exchange, transfer, process, and/or transport one or more of the PRODUCTS to individuals, businesses, or retailers for sale or use in the State of California. 17. Defendants DOES 101-150 (“RETAILER DEFENDANTS?) are each a person in the course of doing business within the meaning of Health and Safety Code section 25249.11. 18. RETAILER DEFENDANTS offer the PRODUCTS for sale to individuals in the State of California. 19. At this time, the true names of defendants DOES 1 through 150, inclusive, are unknown to plaintiff, who, therefore, sues said defendants by their fictitious names pursuant to Code of Civil Procedure section 474. Plaintiff is informed and believes, and on that basis alleges, that each of the fictitiously named defendants is responsible for the acts and occurrences alleged herein. When ascertained, their true names shall be reflected in an amended complaint. 20. DEAN, MANUFACTURER DEFENDANTS, DISTRIBUTOR DEFENDANTS, and RETAILER DEFENDANTS are collectively referred to herein as “DEFENDANTS.” VENUE AND JURISDICTION 21. Venue is proper in the San Francisco County Superior Court, pursuant to Code of Civil Procedure §§ 393, 395, and 395.5, because this Court is a court of competent jurisdiction, because plaintiff seeks civil penalties against DEFENDANTS, because one or more instances of wrongful conduct occurred, and continue to occur, in San Francisco County, and/or because DEFENDANTS conducted, and continues to conduct, business in this county with respect to the PRODUCTS. 22. The California Superior Court has jurisdiction over this action pursuant to California Constitution Article V1, § 10, which grants the Superior Court “original jurisdiction in all causes except those given by statute to other trial courts.” The statute under which this action is brought does not specify any other basis of subject matter jurisdiction. ~ COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF23. The California Superior Court has jurisdiction over DEFENDANTS based on plaintiff's information and good faith belief that each defendant is a person, firm, corporation or association that is a citizen of the state of California, has sufficient minimum contacts in the state of California, and/or otherwise purposefully avails itself of the California market. DEFENDANTS’ purposeful availment renders the exercise of personal jurisdiction by California courts over DEFENDANTS consistent with traditional notions of fair play and substantial justice. FIRST CAUSE OF ACTION (Violation of Proposition 65 - Against All Defendants) 24. Plaintiff realleges and incorporates by reference, as if fully set forth herein, Paragraphs 1 through 23, inclusive. 25. In enacting Proposition 65, in the preamble to the Safe Drinking Water and Toxic Enforcement Act of 1986, the People of California expressly declared their right “[t]o be informed about exposures to chemicals that cause cancer, birth defects, or other reproductive harm.” 26. Proposition 65 states, “[nJo 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 . ..” Health & Safety Code § 25249.6. 27. On June 14, 2013, plaintiff's sixty-day notice of violation—together with the certificate of merit required by Health & Safety Code § 25249.7(d)(1)—was served on DEAN and the requisite public prosecutors pursuant to California Code of Regulations title 27, § 25903(c)(3), stating that, as a result of DEFENDANTS’ sales of the PRODUCTS containing 4-MEI, purchasers and consumers in the state of California were being exposed to 4-MEI resulting from their reasonably foreseeable use and consumption of the PRODUCTS, without having been provided with a “clear and reasonable warning” regarding such toxic exposures, as required by Proposition 65. ~ COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF28. DEFENDANTS have engaged in the manufacture, distribution, sale, and offering of the PRODUCTS for sale or consumption in violation of Health and Safety Code § 25249.6, and DEFENDANTS’ violations have continued to occur beyond their receipt of plaintiff's sixty-day notice of violation. As such, DEFENDANTS’ violations are ongoing and continuous in nature, and will continue to occur in the future. 29. After receiving the claims asserted in the sixty-day notice of violation, the appropriate public enforcement agencies have failed to commence and diligently prosecute a cause of action against DEFENDANTS under Proposition 65. 30. The PRODUCTS manufactured, imported, distributed, sold, and offered for sale or use in California by DEFENDANTS contain 4-MEI such that it requires a “clear and reasonable” warning under Proposition 65. 31. DEFENDANTS knew or should have known that the PRODUCTS they manufacture, import, distribute, sell, and offer for sale or use in California contain 4-MEI. 32. 4-MELis present in the PRODUCTS in such a way as to expose individuals to 4-MEIT through ingestion during reasonably foreseeable use of the PRODUCTS including through workplace exposure of the PRODUCTS. 33. ‘The normal and reasonably foreseeable consumption of the PRODUCTS has caused, and continues to cause, consumer exposures to 4-MEI, as such exposures are defined by California Code of Regulations title 27, § 25602(b). 34. DEFENDANTS have actual and/or constructive knowledge that the normal and reasonably foreseeable consumption of the PRODUCTS would ultimately expose individuals to 4- MEI through ingestion. 35. | DEFENDANTS intended that such exposures to 4-MEI from the reasonably foreseeable consumption of the PRODUCTS would occur by DEFENDANTS’ deliberate, non- accidental participation in the manufacture, importation, distribution, sale, and/or offering of the PRODUCTS for sale to individuals in the state of California. COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF36. DEFENDANTS failed to provide a “clear and reasonable warning” to those consumers and other individuals in the state of California who were or who would become exposed to 4-MEI through ingestion during the consumption of the PRODUCTS including through workplace exposure to the PRODUCTS. 37. Contrary to the express policy and statutory prohibition of Proposition 65 enacted directly by California voters, individuals exposed to 4-MEI through ingestion resulting from the consumption of the PRODUCTS including through workplace exposure to the PRODUCTS sold by DEFENDANTS without a “clear and reasonable warning,” have suffered, and continue to suffer, irreparable harm for which they have no plain, speedy, or adequate remedy at law. 38. Pursuant to Health and Safety Code § 25249.7(b), as a consequence of the above- described acts, DEFENDANTS are liable for a maximum civil penalty of $2,500 per day for each violation. 39. As aconsequence of the above-described acts, Health and Safety Code § 25249.7(a) also specifically authorizes the Court to grant injunctive relief against DEFENDANTS. COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEFon aA Ww PRAYER FOR RELIEF Wherefore, plaintiff prays for judgment against defendants as follows: 1 That the Court, pursuant to Health and Safety Code § 25249.7(b), assess civil penalties against DEFENDANTS in the amount of $2,500 per day for each violation; 2. That the Court, pursuant to Ilealth and Safety Code § 25249.7(a), preliminarily and permanently enjoin DEFENDANTS from preparing, distributing, or offering the PRODUCTS for sale or consumption in California without first providing a “clear and reasonable warning” as defined by California Code of Regulations title 27, § 25601 et seq., as to the harms associated with exposures to 4-MEI; 3. That the Court, pursuant to Health and Safety Code § 25249.7(a), issue preliminary and permanent injunctions mandating that DEFENDANTS recall all PRODUCTS currently in the chain of commerce in California without a “clear and reasonable warning” as defined by California Code of Regulations title 27, § 25601 et seq. 4. That the Court grant plaintiff her reasonable attorneys’ fees and costs of suit; and 5. That the Court grant such other and further relief as may be just and proper. Dated: August 30, 2013 Respectfully Submitted, THE CHANLER GROUP eo By: fd Ch _ Clifford A. Chanler Attorneys for Plaintiff WHITNEY R. LEEMAN, PH.D. COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF