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I Evan J. Smith, Esquire (SBN 242352)
Ryan P. Cardona, Esquire (SBN 302113)
2 BRODSKY & SMITH, LLC
9595 Wilshire Blvd., Ste. 900 ELECTRONICALLY
Beverly Hills, CA 90212
3
Telephone: (877) 534-2590 F I L E D
Superior Court of California,
4 Facsimile: (310) 247-0160 County of San Francisco
5 Ailorneys for Plaintiff 07/10/2020
Clerk of the Court
BY: KALENE APOLONIO
Deputy Clerk
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Case No.: CGC-20-583875
10 PRECILA BALABBO,
FIRST AMENDED COMPLAINT FOR CIVIL
Plaintiff, PENALTIES AND INJUNCTIVE RELEIF
12 vs. (Violation of Health & Safety Code lI25249.5 et
seq.)
13 CVS PHARMACY, INC., et al.
14 Defendant.
15 Plaintiff Precila Balabbo (" Plaintiff', by and through her attorneys, alleges the following
cause of action in the public interest of the citizens of the State of California.
17 BACKGROUND OF THE CASE
18 1. Plaintiff brings this representative action on behalf of all California citizens to
enforce relevant portions of Safe Drinking Water and Toxic Enforcement Act of 1986, codified at
thc Health and Safety Code ) 25249.5 et seq (" Proposition 65"), which reads, in relevant part,
"[n]o person in the course of doing business shall knowingly and intentionally expose any
individual to a chemical known to the state to cause cancer or reproductive toxicity without first
giving clear and reasonable warning to such individual ...". Health & Safety Code $ 25249.6.
24 2. This complaint is a representative action brought by Plaintiff in the public interest
of the citizens of the State of California to enforce the People's right to be informed of the health
hazards caused by exposure to di(2-ethylhexyl) phthalate (DEHP), a toxic chemical found in
Almar Sales hairband packs/sets and other products of a similar type sold and/or distributed by
defendants CVS Pharmacy, Inc. ("CVS") and Almar Sales Co., Inc. ("Almar*') (collectively,
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HFALTH & SAFETY CODE $ 25249.5
"Defendants" ), as well as Almar My Princess Academy Backpack Makeup Collections and other
products of a similar type sold by Almar in California.
3. DEHP is a harmful chemical known to the State of California to cause cancer and
reproductive toxicity. On January I, 1988, the State of California listed DEHP as a chemical known
to the State to cause cancer and it has come under the purview of Proposition 65 regulations since
that time. Cal. Code Regs. Tit. 27, tj27001(c); Health & Safety Code tj) 25249.8 & 25249.10(b).
On October 24, 2003, the State of California listed DEHP as a chemical known to cause
reproductive toxicity.
4. Proposition 65 requires all businesses with ten (10) or more employees that operate
10 within California or sell products therein to comply with Proposition 65 regulations. Included in
such regulations is the requirement that businesses must label any product containing a Proposition
12 65-listed chemical with a "clear and reasonable" warning before "knowingly and intentionally"
13 exposing any person to any such listed chemical.
14 5. Proposition 65 allows for civil penalties of up to $ 2,500.00 per day per violation
15 for up to 365 days (up to a maximum civil penalty amount per violation of $ 912,000.00) to be
16 imposed upon defendants in a civil action for violations of Proposition 65. Health & Safety Code
17 Ij25249.7(b). Proposition 65 also allows for any court of competent jurisdiction to enjoin the
18 actions of a defendant which "violate or threaten to violate" the statute. Health & Safety Code $
19 25249.7.
20 6. Plaintiff alleges that Defendants distribute and/or offer for sale in California,
21 without a requisite exposure warning, (a) Almar Sales Company Expressions hairband super packs
22 and other products of a similar type manufactured, imported, distributed and/or sold by
23 Defendants, and (b) that Almar sells and/or distributes My Princess Academy Backpack Makeup
24 Collections and other products of a similar type in California (collectively the "Products" ) that
25 expose persons to DEHP. The Products within the operative 60-day notices and complaint are all
26 Almar carry cases and carrying bags of any kind that are either empty or that contain accessories,
27 including but not limited to backpacks, knapsacks, totes, pouches, or other similar products
28 manufactured by or for Almar, or imported, sold or distributed by Almar, under any Almar
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE (25249.5
tradename such as "Expressions," "My Princess Expressions," or "My Princess Academy,"
including but not limited to Almar Sales Company Expressions hairband super packs and My
Princess Academy Backpack Makeup Collections including, but not limited to, UPC Nos.
024576830656 and 024575764586.
7. Defendants'ailure to warn consumers and other individuals in California of the
health hazards associated with exposure to DEHP in conjunction with the sale and/or distribution
of the Products is a violation of Proposition 65 and subjects Defendants to the enjoinment and civil
penalties described herein.
8. Plaintiff seeks civil penalties against Defendants for their violations of Proposition
10 65 in accordance with Health and Safety Code $ 25249.7(b).
9. Plaintiff also seeks injunctive relief, preliminarily and permanently, requiring
12 Defendants to provide purchasers or users of the Products with required warnings related to the
13 dangers and health hazards associated with exposure to DEHP pursuant to Health and Safety Code
14 5 25249.7(a).
15 10. Plaintiff further seeks a reasonable award of attorney's fees and costs.
16 PARTIF.S
17 11. Plaintiff is a citizen of the State of California acting in the interest of the general
18 public to promote awareness of exposures to toxic chemicals in products sold in California and to
19 improve human health by reducing hazardous substances contained in such items. She brings this
20 action in the public interest pursuant to Health and Safety Code tj25249.7(d).
21 12. Defendant CVS, through its business, effectively imports, distributes, sells, and/or
22 offers the Products for sale or use in the State of California, or it itnplies by its conduct that it
23 imports, distributes, sells, and/or offers the Products for sale or use in the State of California.
24 Plaintiff alleges that defendant CVS is a "person" in the course of doing business within the
25 meaning of Health & Safety Code sections 25249.6 and 25249.11.
26 13. Defendant Almar, through its business, effectively imports, distributes, sells, and/or
27 offers the Products for sale or use in the State of California, or it implies by its conduct that it
28 imports, distributes, sells, and/or offers the Products for sale or use in the State of California.
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE tj25249.5
Plaintiff alleges that defendant Almar is a "person" in the course of doing business within the
meaning of Health & Safety Code sections 25249.6 and 25249.11.
14. VENUE AND JURISDICTION
15. Venue is proper in the County of San Francisco because one or more of the
instances of wrongful conduct occurred, and continue to occur in this county and/or because
Defendants conducted, and continue to conduct, business in the County of San Francisco with
respect to the Products.
16. This Court has jurisdiction over this action pursuant to California Constitution
Article VI, $ 10, which grants the Superior Court original jurisdiction in all causes except those
10 given by statute to other trial courts. Health and Safety Code $ 25249.7 allows for the enforcement
of violations of Proposition 65 in any Court of competent jurisdiction; therefore, this Court has
12 jurisdiction over this lawsuit.
13 17. This Court has jurisdiction over Defendants because each defendant is either a
14 citizen of the State of California, has sufficient minimum contacts with the State of California, is
15 registered with the California Secretary of State as foreign corporations authorized to do business
16 in the State of California, and/or has otherwise purposefully availed itself of the California market.
17 Such purposeful availment has rendered the exercise of jurisdiction by California courts consistent
and permissible with traditional notions of fair play and substantial justice.
19 STATUTORY BACKGROUND
20 18. The people of the State of California declared in Proposition 65 their right "tt]o be
21 informed about exposures to chemicals that cause cancer, birth defects, or other reproductive
22 harm." (Section 1(b) of Initiative Measure, Proposition 65.)
23 19. To effect this goal, Proposition 65 requires that individuals be provided with a
24 "clear and reasonable warning" before being exposed to substances listed by the State of California
25 as causing cancer or reproductive toxicity. H&S Code $ 25249.6 states, in pertinent part:
26 No 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
27 first giving clear and reasonable warning to such individual...
28
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE li25249.5
20. An exposure to a chemical in a consumer product is one "which results from a
person's acquisition, purchase, storage, consumption or other reasonably foreseeable use of a
consumer good, or any exposure that results from receiving a consumer service." (27 CCR )
25602, para (b).) H&S Code $ 25603(c) states that "a person in the course of doing business ..
shall provide a warning to any person to whom the product is sold or transferred unless the product
is packaged or labeled with a clear and reasonable warning."
21. Pursuant to H&S Code tj25603.1, the warning may be provided by using one or
more of the following methods individually or in combination
a. A warning that appears on a product's label or other labeling.
10 b. Identification of the product at the retail outlet in a manner which provides
a warning. Identification may be through shelf labeling, signs, menus, or a combination
12 thereof.
13 c. The warnings provided pursuant to subparagraphs (a) and (b) shall be
14 prominently placed upon a product's labels or other labeling or displayed at the retail outlet
15 with such conspicuousness, as compared with other words, statements, designs, or devices
16 in the label, labeling or display as to render it likely to be read and understood by an
17 ordinary individual under customary conditions of purchase or use.
18 d. A system of signs, public advertising identifying the system and toll-free
19 information services, or any other system that provides clear and reasonable warnings.
20 22. Proposition 65 provides that any "person who violates or threatens to violate" the
21 statute may be enjoined in a court of competent jurisdiction. (H&S Code tj25249.7.) The phrase
22 "threaten to violate" is defined to mean creating "a condition in which there is a substantial
23 probability that a violation will occur." (H&S Code $ 25249.11(e).) Violators are liable for civil
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27 'lternatively, a person in the course of doing business may elect to comply with the warning
requirements set out in the amended version of 27 CCR 25601, et.seq.. as amended on August 30,
28 2016, and operative on August 30, 2018.
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE )25249.5
penalties of up to $ 2,500.00 per day for each violation of the Act (H&S Code ) 25249.7) for up to
365 days (up to a maximum civil penalty amount per violation of $ 912,000.00).
FACTUALBACKGROUND
23. On January I, 1988, the State of California listed DEHP as a chemical known to
the State to cause cancer and it has come under the purview of Proposition 65 regulations since
that time. Cal. Code Regs. Tit. 27, II27001(c); Health & Safety Code )Ii 25249.8 & 25249.10(b).
On October 24, 2003, the State of California listed DEHP as a chemical known to cause
reproductive toxicity. In summary, the Listed Chemical was listed under Proposition 65 as a
chemical known to the State to cause cancer and reproductive toxicity.
10 24. The consumer exposures that are the subject of this First Amended Complaint result
Irom dermal absorption. Dermal absorption of DEHP can occur through direct skin contact when
12 the Products are grasped with bare hands. If the Products are stored or transported in a carrier,
13 DEHP that leaches from the Products may contaminate other articles contained within these closed
14 spaces are subsequently handled, worn, mouthed, or consumed. Finally, while mouthing of the
15 Products does not seem likely, some amount of exposure through ingestion can occur by touching
16 the Products with subsequent touching of the user's hand to mouth. Defendants have
17 manufactured, processed, marketed, distributed, offered to sell and/or sold the Products in
18 California since at least March 19, 2019 (Hairband super packs) and November 27, 2019
19 (backpack makeup collections), respectively. The Products continue to be distributed and sold in
20 California without the requisite warning information.
21 25. At all times relevant to this action, Defendants have knowingly and intentionally
22 exposed users, consumers and/or patients to the Products and the Listed Chemical without first
23 giving a clear and reasonable exposure warning to such individuals.
24 26. As a proximate result of acts by Defendants, as a person in the course of doing
25 business within the meaning of H&S Code ) 25249.11, individuals throughout the State of
26 California, including in San Francisco County, have been exposed to the Listed Chemical without
27 a clear and reasonable warning on the Products. The individuals subject to the violative exposures
28
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE ti25249.5
include normal and foreseeable users, consuiners and patients that use the Products, as well as all
others exposed to the Products.
SATISFACTION OF NOTICE RKOIJIREMNTS
27. On or about March 19, 2019, Balabbo served Almar, CVS Pharmacy, Inc. ("CVS")
and various public enforcement agencies with documents entitled "60-Day Notice of Violation"
pursuant to Health & Safety Code $ 25249.7(d) (the "March NOV"), alleging that Almar and CVS
violated Proposition 65 by failing to warn California consumers that the use of Almar Sales
Company Expressions hairband super packs and other products of a similar type manufactured,
imported, distributed and/or sold by Almar and/or CVS exposed California consumers to DEHP
10 without a Proposition 65 warning. Thereafter, on November 27, 2019, Balabbo served Almar and
various public enforcement agencies with a second set of documents entitled "60-Day Notice of
12 Violation" pursuant to Health & Safety Code $ 25249.7(d) (the "November NOV"), alleging that
13 Almar violated Proposition 65 by failing to warn California consumers that the use of My Princess
14 Academy Backpack Makeup Collections and other products of a similar type manufactured,
15 imported, distributed and/or sold by Almar exposed California consumers to DEHP without a
16 Proposition 65 warning. The March NOV and the November NOV are collectively referred to
17 herein as the "Notices." The Notices were also served on the California Attorney General's office
and the offices of the County District attorneys and City Attorneys for each city with a population
19 greater than 750,000 persons wherein the herein violations allegedly occurred.
20 27. The Notices complied with all procedural requirements of Proposition 65 including
21 the attachment of a Certificate of Merit affirming that Plaintiff s counsel had consulted with at
22 least one person with relevant and appropriate expertise who reviewed relevant data regarding
23 DEHP exposure, and that counsel believed there was meritorious and reasonable cause for a private
24 action.
25 28. After receiving the Notices, and to Plaintiff s best information and belief, none of
26 the noticed appropriate public enforcement agencies have commenced and diligently prosecuted a
27 cause of action against Defendants under Proposition 65 to enforce the alleged violations which
28 are the subject of the Notice.
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE )25249.5
1 29. Plaintiff is commencing this action more than sixty (60) days from the date of the
2 Notices to Defendants, as required by law.
3 FIRST CAUSE OF ACTION
4 (By Plaintiff against Defendants for the Violation of Proposition 65)
5 30. Plaintiff hereby repeats and incorporates by reference paragraphs I through 30 of
6 this First Amended Complaint as though fully set forth herein.
7 31. Defendants have, at all times mentioned herein, acted as distributer, and/or retailer
8 of the Products.
9 32. The Products contain DEHP, a hazardous chemical found on the Proposition 65 list
10 of chemicals known to be hazardous to human health.
11 33. The Products do not comply with the Proposition 65 warning requirements.
12 34. Plaintiff, based on her best information and belief, avers that at all relevant times
13 herein, and at least since March 19, 2019 (Hairband super packs) and November 27, 2019
14 (backpack makeup collections), respectively, continuing until the present, that Defendants have
15 continued to knowingly and intentionally expose California users and consutners of the Products
16 to DEHP without providing required warnings under Proposition 65.
17 35. The exposures that are the subject of the Notice result from the purchase,
18 acquisition, handling and recommended use of the Products. Consequently, the primary route of
19 exposure to these chemicals is through dermal absorption. Dermal absorption of DEHP can occur
20 through direct skin contact when the Products are grasped with bare hands. If the Products are
21 stored or transported in a carrier, DEHP that leaches from the Products may contaminate other
22 articles contained within these closed spaces are subsequently handled, worn, mouthed, or
23 consumed. Finally, while mouthing of the Products does not seem likely, some amount of exposure
24 through ingestion can occur by touching the Products with subsequent touching of the user's hand
25 to mouth.
26 36. Plaintiff, based on her best information and belief, avers that such exposures will
27 continue every day until clear and reasonable warnings are provided to product purchasers and
28 users or until this known toxic chemical is removed from the Products.
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE )25249.5
37. Defendants have knowledge that the normal and reasonably foreseeable use of the
Products exposes individuals to DEHP, and Defendants intend that exposures to DEHP will occur
by its deliberate, non-accidental participation in the importation, distribution, sale and offering of
the Products to consumers in California
38. Plaintiff has engaged in good faith efforts to resolve the herein claims prior to this
First Amended Complaint.
39. Pursuant to Health and Safety Code tj25249.7(b), as a consequence of the above
described acts, Defendants are liable for a maximum civil penalty of $ 2,500 per day per violation.
40. Pursuant to Health and Safety Code $ 25249.7(a), this Court is specifically
10 authorized to grant injunctive relief in favor of Plaintiff and against Defendants.
PRAYER FOR RELIEF
12 WHEREFORE, Plaintiff demands judgment against Defendants and requests the following
13 relief:
14 A. That the court assess civil penalties against each Defendant in the amount of $ 2,500
15 per day for each violation for up to 365 days (up to a maximum civil penalty amount per
16 violation of $ 912,000.00) in accordance with Health and Safety Code tj25249.7(b);
17 B. That the court preliminarily and permanently enjoin Defendants mandating
18 Proposition 65 compliant warnings on the Products;
19 C, That the court grant Plaintiff reasonable attorney's fees and costs of suit, in the
20 amount of $ 50,000.00.
21 D. That the court grant any further relief as may be just and proper.
22 Dated: July 10, 2020 BR LLC
23 By:
Evan J. Smith (SBN242352)
24
Ryan P. Cardona (SBN302113)
25 9595 Wilshire Boulevard, Suite 900
Beverly Hills, CA 90212
26 Telephone: (877) 534-2590
Facsimile: (310) 247-0160
27
28
Attorneys for Plaintiff
9
FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE tj25249.5
Evan J. Smith, Esquire (SBN 242352)
Ryan P. Cardona, Esquire (SBN 302113)
BRODSKY & SMITH, LLC
9595 Wilshire Blvd., Ste. 900
Beverly Hills, CA 90212
Telephone: (877) 534-2590
Facsimile: (310) 247-0160
Attorneys for Plaintiff
SUPERIOR COURT OF THE STATE OF CALIFORNIA
COUNTY OF SAN FRANCISCO
Case No.: CGC-20-583875
10 PRECILA BALABBO,
Plaintiff, PROOF OF MAILING
12 vs.
13 CVS PHARMACY, INC., et al.
14 Defendant.
15 I, Evan J. Smith, Esquire, declare:
16
I am over the age of 18 years and not a party to this action; my business address is 9595
17 Wilshire Blvd., Ste. 900, Beverly Hills, CA 90212 and 333 E. City Avenue, Suite 510, Bala
Cynwyd, PA 19004.
18
On July 10, 2020, I served the following document(s):
19
20 (1) FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE
RELIEF — VIOLATION OF HEALTH & SAFETY CODE g 25249.5;
21
by serving a true copy of the above-described document in the following manner:
22
BY ELECTRONIC MAIL DELIVERY
23
24 The above-described documents were transmitted via Electronic Mail Delivery to the following
parties on July 10, 2020:
25
James Robert Maxwell
26 RJO
Robert Dollar Building 311 California St.,
27
10th Floor
28 San Francisco, CA, 94104
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF IIEALTH & SAFETY CODE $ 25249.5
jmaxwell@rjo.corn
Attorney Defendant
I declare under penalty of perjury under the laws of California and of the United States of America
that the above is true and correct.
Executed on July 10, 2020, at Bala Cynwyd, Pennsylvania.
Evan J. Smith
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FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF-
VIOLATION OF HEALTH & SAFETY CODE Il25249.5
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I Evan J. Smith, Esquire (SBN 242352) Ryan P. Cardona, Esquire (SBN 302113) 2 BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 ELECTRONICALLY Beverly Hills, CA 90212 3 Telephone: (877) 534-2590 F I L E D Superior Court of California, 4 Facsimile: (310) 247-0160 County of San Francisco 5 Ailorneys for Plaintiff 07/10/2020 Clerk of the Court BY: KALENE APOLONIO Deputy Clerk SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO Case No.: CGC-20-583875 10 PRECILA BALABBO, FIRST AMENDED COMPLAINT FOR CIVIL Plaintiff, PENALTIES AND INJUNCTIVE RELEIF 12 vs. (Violation of Health & Safety Code lI25249.5 et seq.) 13 CVS PHARMACY, INC., et al. 14 Defendant. 15 Plaintiff Precila Balabbo (" Plaintiff', by and through her attorneys, alleges the following cause of action in the public interest of the citizens of the State of California. 17 BACKGROUND OF THE CASE 18 1. Plaintiff brings this representative action on behalf of all California citizens to enforce relevant portions of Safe Drinking Water and Toxic Enforcement Act of 1986, codified at thc Health and Safety Code ) 25249.5 et seq (" Proposition 65"), which reads, in relevant part, "[n]o person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual ...". Health & Safety Code $ 25249.6. 24 2. This complaint is a representative action brought by Plaintiff in the public interest of the citizens of the State of California to enforce the People's right to be informed of the health hazards caused by exposure to di(2-ethylhexyl) phthalate (DEHP), a toxic chemical found in Almar Sales hairband packs/sets and other products of a similar type sold and/or distributed by defendants CVS Pharmacy, Inc. ("CVS") and Almar Sales Co., Inc. ("Almar*') (collectively, -I- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HFALTH & SAFETY CODE $ 25249.5 "Defendants" ), as well as Almar My Princess Academy Backpack Makeup Collections and other products of a similar type sold by Almar in California. 3. DEHP is a harmful chemical known to the State of California to cause cancer and reproductive toxicity. On January I, 1988, the State of California listed DEHP as a chemical known to the State to cause cancer and it has come under the purview of Proposition 65 regulations since that time. Cal. Code Regs. Tit. 27, tj27001(c); Health & Safety Code tj) 25249.8 & 25249.10(b). On October 24, 2003, the State of California listed DEHP as a chemical known to cause reproductive toxicity. 4. Proposition 65 requires all businesses with ten (10) or more employees that operate 10 within California or sell products therein to comply with Proposition 65 regulations. Included in such regulations is the requirement that businesses must label any product containing a Proposition 12 65-listed chemical with a "clear and reasonable" warning before "knowingly and intentionally" 13 exposing any person to any such listed chemical. 14 5. Proposition 65 allows for civil penalties of up to $ 2,500.00 per day per violation 15 for up to 365 days (up to a maximum civil penalty amount per violation of $ 912,000.00) to be 16 imposed upon defendants in a civil action for violations of Proposition 65. Health & Safety Code 17 Ij25249.7(b). Proposition 65 also allows for any court of competent jurisdiction to enjoin the 18 actions of a defendant which "violate or threaten to violate" the statute. Health & Safety Code $ 19 25249.7. 20 6. Plaintiff alleges that Defendants distribute and/or offer for sale in California, 21 without a requisite exposure warning, (a) Almar Sales Company Expressions hairband super packs 22 and other products of a similar type manufactured, imported, distributed and/or sold by 23 Defendants, and (b) that Almar sells and/or distributes My Princess Academy Backpack Makeup 24 Collections and other products of a similar type in California (collectively the "Products" ) that 25 expose persons to DEHP. The Products within the operative 60-day notices and complaint are all 26 Almar carry cases and carrying bags of any kind that are either empty or that contain accessories, 27 including but not limited to backpacks, knapsacks, totes, pouches, or other similar products 28 manufactured by or for Almar, or imported, sold or distributed by Almar, under any Almar -2- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE (25249.5 tradename such as "Expressions," "My Princess Expressions," or "My Princess Academy," including but not limited to Almar Sales Company Expressions hairband super packs and My Princess Academy Backpack Makeup Collections including, but not limited to, UPC Nos. 024576830656 and 024575764586. 7. Defendants'ailure to warn consumers and other individuals in California of the health hazards associated with exposure to DEHP in conjunction with the sale and/or distribution of the Products is a violation of Proposition 65 and subjects Defendants to the enjoinment and civil penalties described herein. 8. Plaintiff seeks civil penalties against Defendants for their violations of Proposition 10 65 in accordance with Health and Safety Code $ 25249.7(b). 9. Plaintiff also seeks injunctive relief, preliminarily and permanently, requiring 12 Defendants to provide purchasers or users of the Products with required warnings related to the 13 dangers and health hazards associated with exposure to DEHP pursuant to Health and Safety Code 14 5 25249.7(a). 15 10. Plaintiff further seeks a reasonable award of attorney's fees and costs. 16 PARTIF.S 17 11. Plaintiff is a citizen of the State of California acting in the interest of the general 18 public to promote awareness of exposures to toxic chemicals in products sold in California and to 19 improve human health by reducing hazardous substances contained in such items. She brings this 20 action in the public interest pursuant to Health and Safety Code tj25249.7(d). 21 12. Defendant CVS, through its business, effectively imports, distributes, sells, and/or 22 offers the Products for sale or use in the State of California, or it itnplies by its conduct that it 23 imports, distributes, sells, and/or offers the Products for sale or use in the State of California. 24 Plaintiff alleges that defendant CVS is a "person" in the course of doing business within the 25 meaning of Health & Safety Code sections 25249.6 and 25249.11. 26 13. Defendant Almar, through its business, effectively imports, distributes, sells, and/or 27 offers the Products for sale or use in the State of California, or it implies by its conduct that it 28 imports, distributes, sells, and/or offers the Products for sale or use in the State of California. 3 FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE tj25249.5 Plaintiff alleges that defendant Almar is a "person" in the course of doing business within the meaning of Health & Safety Code sections 25249.6 and 25249.11. 14. VENUE AND JURISDICTION 15. Venue is proper in the County of San Francisco because one or more of the instances of wrongful conduct occurred, and continue to occur in this county and/or because Defendants conducted, and continue to conduct, business in the County of San Francisco with respect to the Products. 16. This Court has jurisdiction over this action pursuant to California Constitution Article VI, $ 10, which grants the Superior Court original jurisdiction in all causes except those 10 given by statute to other trial courts. Health and Safety Code $ 25249.7 allows for the enforcement of violations of Proposition 65 in any Court of competent jurisdiction; therefore, this Court has 12 jurisdiction over this lawsuit. 13 17. This Court has jurisdiction over Defendants because each defendant is either a 14 citizen of the State of California, has sufficient minimum contacts with the State of California, is 15 registered with the California Secretary of State as foreign corporations authorized to do business 16 in the State of California, and/or has otherwise purposefully availed itself of the California market. 17 Such purposeful availment has rendered the exercise of jurisdiction by California courts consistent and permissible with traditional notions of fair play and substantial justice. 19 STATUTORY BACKGROUND 20 18. The people of the State of California declared in Proposition 65 their right "tt]o be 21 informed about exposures to chemicals that cause cancer, birth defects, or other reproductive 22 harm." (Section 1(b) of Initiative Measure, Proposition 65.) 23 19. To effect this goal, Proposition 65 requires that individuals be provided with a 24 "clear and reasonable warning" before being exposed to substances listed by the State of California 25 as causing cancer or reproductive toxicity. H&S Code $ 25249.6 states, in pertinent part: 26 No 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 27 first giving clear and reasonable warning to such individual... 28 4 FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE li25249.5 20. An exposure to a chemical in a consumer product is one "which results from a person's acquisition, purchase, storage, consumption or other reasonably foreseeable use of a consumer good, or any exposure that results from receiving a consumer service." (27 CCR ) 25602, para (b).) H&S Code $ 25603(c) states that "a person in the course of doing business .. shall provide a warning to any person to whom the product is sold or transferred unless the product is packaged or labeled with a clear and reasonable warning." 21. Pursuant to H&S Code tj25603.1, the warning may be provided by using one or more of the following methods individually or in combination a. A warning that appears on a product's label or other labeling. 10 b. Identification of the product at the retail outlet in a manner which provides a warning. Identification may be through shelf labeling, signs, menus, or a combination 12 thereof. 13 c. The warnings provided pursuant to subparagraphs (a) and (b) shall be 14 prominently placed upon a product's labels or other labeling or displayed at the retail outlet 15 with such conspicuousness, as compared with other words, statements, designs, or devices 16 in the label, labeling or display as to render it likely to be read and understood by an 17 ordinary individual under customary conditions of purchase or use. 18 d. A system of signs, public advertising identifying the system and toll-free 19 information services, or any other system that provides clear and reasonable warnings. 20 22. Proposition 65 provides that any "person who violates or threatens to violate" the 21 statute may be enjoined in a court of competent jurisdiction. (H&S Code tj25249.7.) The phrase 22 "threaten to violate" is defined to mean creating "a condition in which there is a substantial 23 probability that a violation will occur." (H&S Code $ 25249.11(e).) Violators are liable for civil 24 25 26 27 'lternatively, a person in the course of doing business may elect to comply with the warning requirements set out in the amended version of 27 CCR 25601, et.seq.. as amended on August 30, 28 2016, and operative on August 30, 2018. -5- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE )25249.5 penalties of up to $ 2,500.00 per day for each violation of the Act (H&S Code ) 25249.7) for up to 365 days (up to a maximum civil penalty amount per violation of $ 912,000.00). FACTUALBACKGROUND 23. On January I, 1988, the State of California listed DEHP as a chemical known to the State to cause cancer and it has come under the purview of Proposition 65 regulations since that time. Cal. Code Regs. Tit. 27, II27001(c); Health & Safety Code )Ii 25249.8 & 25249.10(b). On October 24, 2003, the State of California listed DEHP as a chemical known to cause reproductive toxicity. In summary, the Listed Chemical was listed under Proposition 65 as a chemical known to the State to cause cancer and reproductive toxicity. 10 24. The consumer exposures that are the subject of this First Amended Complaint result Irom dermal absorption. Dermal absorption of DEHP can occur through direct skin contact when 12 the Products are grasped with bare hands. If the Products are stored or transported in a carrier, 13 DEHP that leaches from the Products may contaminate other articles contained within these closed 14 spaces are subsequently handled, worn, mouthed, or consumed. Finally, while mouthing of the 15 Products does not seem likely, some amount of exposure through ingestion can occur by touching 16 the Products with subsequent touching of the user's hand to mouth. Defendants have 17 manufactured, processed, marketed, distributed, offered to sell and/or sold the Products in 18 California since at least March 19, 2019 (Hairband super packs) and November 27, 2019 19 (backpack makeup collections), respectively. The Products continue to be distributed and sold in 20 California without the requisite warning information. 21 25. At all times relevant to this action, Defendants have knowingly and intentionally 22 exposed users, consumers and/or patients to the Products and the Listed Chemical without first 23 giving a clear and reasonable exposure warning to such individuals. 24 26. As a proximate result of acts by Defendants, as a person in the course of doing 25 business within the meaning of H&S Code ) 25249.11, individuals throughout the State of 26 California, including in San Francisco County, have been exposed to the Listed Chemical without 27 a clear and reasonable warning on the Products. The individuals subject to the violative exposures 28 -6- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE ti25249.5 include normal and foreseeable users, consuiners and patients that use the Products, as well as all others exposed to the Products. SATISFACTION OF NOTICE RKOIJIREMNTS 27. On or about March 19, 2019, Balabbo served Almar, CVS Pharmacy, Inc. ("CVS") and various public enforcement agencies with documents entitled "60-Day Notice of Violation" pursuant to Health & Safety Code $ 25249.7(d) (the "March NOV"), alleging that Almar and CVS violated Proposition 65 by failing to warn California consumers that the use of Almar Sales Company Expressions hairband super packs and other products of a similar type manufactured, imported, distributed and/or sold by Almar and/or CVS exposed California consumers to DEHP 10 without a Proposition 65 warning. Thereafter, on November 27, 2019, Balabbo served Almar and various public enforcement agencies with a second set of documents entitled "60-Day Notice of 12 Violation" pursuant to Health & Safety Code $ 25249.7(d) (the "November NOV"), alleging that 13 Almar violated Proposition 65 by failing to warn California consumers that the use of My Princess 14 Academy Backpack Makeup Collections and other products of a similar type manufactured, 15 imported, distributed and/or sold by Almar exposed California consumers to DEHP without a 16 Proposition 65 warning. The March NOV and the November NOV are collectively referred to 17 herein as the "Notices." The Notices were also served on the California Attorney General's office and the offices of the County District attorneys and City Attorneys for each city with a population 19 greater than 750,000 persons wherein the herein violations allegedly occurred. 20 27. The Notices complied with all procedural requirements of Proposition 65 including 21 the attachment of a Certificate of Merit affirming that Plaintiff s counsel had consulted with at 22 least one person with relevant and appropriate expertise who reviewed relevant data regarding 23 DEHP exposure, and that counsel believed there was meritorious and reasonable cause for a private 24 action. 25 28. After receiving the Notices, and to Plaintiff s best information and belief, none of 26 the noticed appropriate public enforcement agencies have commenced and diligently prosecuted a 27 cause of action against Defendants under Proposition 65 to enforce the alleged violations which 28 are the subject of the Notice. -7- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE )25249.5 1 29. Plaintiff is commencing this action more than sixty (60) days from the date of the 2 Notices to Defendants, as required by law. 3 FIRST CAUSE OF ACTION 4 (By Plaintiff against Defendants for the Violation of Proposition 65) 5 30. Plaintiff hereby repeats and incorporates by reference paragraphs I through 30 of 6 this First Amended Complaint as though fully set forth herein. 7 31. Defendants have, at all times mentioned herein, acted as distributer, and/or retailer 8 of the Products. 9 32. The Products contain DEHP, a hazardous chemical found on the Proposition 65 list 10 of chemicals known to be hazardous to human health. 11 33. The Products do not comply with the Proposition 65 warning requirements. 12 34. Plaintiff, based on her best information and belief, avers that at all relevant times 13 herein, and at least since March 19, 2019 (Hairband super packs) and November 27, 2019 14 (backpack makeup collections), respectively, continuing until the present, that Defendants have 15 continued to knowingly and intentionally expose California users and consutners of the Products 16 to DEHP without providing required warnings under Proposition 65. 17 35. The exposures that are the subject of the Notice result from the purchase, 18 acquisition, handling and recommended use of the Products. Consequently, the primary route of 19 exposure to these chemicals is through dermal absorption. Dermal absorption of DEHP can occur 20 through direct skin contact when the Products are grasped with bare hands. If the Products are 21 stored or transported in a carrier, DEHP that leaches from the Products may contaminate other 22 articles contained within these closed spaces are subsequently handled, worn, mouthed, or 23 consumed. Finally, while mouthing of the Products does not seem likely, some amount of exposure 24 through ingestion can occur by touching the Products with subsequent touching of the user's hand 25 to mouth. 26 36. Plaintiff, based on her best information and belief, avers that such exposures will 27 continue every day until clear and reasonable warnings are provided to product purchasers and 28 users or until this known toxic chemical is removed from the Products. -8- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE )25249.5 37. Defendants have knowledge that the normal and reasonably foreseeable use of the Products exposes individuals to DEHP, and Defendants intend that exposures to DEHP will occur by its deliberate, non-accidental participation in the importation, distribution, sale and offering of the Products to consumers in California 38. Plaintiff has engaged in good faith efforts to resolve the herein claims prior to this First Amended Complaint. 39. Pursuant to Health and Safety Code tj25249.7(b), as a consequence of the above described acts, Defendants are liable for a maximum civil penalty of $ 2,500 per day per violation. 40. Pursuant to Health and Safety Code $ 25249.7(a), this Court is specifically 10 authorized to grant injunctive relief in favor of Plaintiff and against Defendants. PRAYER FOR RELIEF 12 WHEREFORE, Plaintiff demands judgment against Defendants and requests the following 13 relief: 14 A. That the court assess civil penalties against each Defendant in the amount of $ 2,500 15 per day for each violation for up to 365 days (up to a maximum civil penalty amount per 16 violation of $ 912,000.00) in accordance with Health and Safety Code tj25249.7(b); 17 B. That the court preliminarily and permanently enjoin Defendants mandating 18 Proposition 65 compliant warnings on the Products; 19 C, That the court grant Plaintiff reasonable attorney's fees and costs of suit, in the 20 amount of $ 50,000.00. 21 D. That the court grant any further relief as may be just and proper. 22 Dated: July 10, 2020 BR LLC 23 By: Evan J. Smith (SBN242352) 24 Ryan P. Cardona (SBN302113) 25 9595 Wilshire Boulevard, Suite 900 Beverly Hills, CA 90212 26 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 27 28 Attorneys for Plaintiff 9 FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE tj25249.5 Evan J. Smith, Esquire (SBN 242352) Ryan P. Cardona, Esquire (SBN 302113) BRODSKY & SMITH, LLC 9595 Wilshire Blvd., Ste. 900 Beverly Hills, CA 90212 Telephone: (877) 534-2590 Facsimile: (310) 247-0160 Attorneys for Plaintiff SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO Case No.: CGC-20-583875 10 PRECILA BALABBO, Plaintiff, PROOF OF MAILING 12 vs. 13 CVS PHARMACY, INC., et al. 14 Defendant. 15 I, Evan J. Smith, Esquire, declare: 16 I am over the age of 18 years and not a party to this action; my business address is 9595 17 Wilshire Blvd., Ste. 900, Beverly Hills, CA 90212 and 333 E. City Avenue, Suite 510, Bala Cynwyd, PA 19004. 18 On July 10, 2020, I served the following document(s): 19 20 (1) FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELIEF — VIOLATION OF HEALTH & SAFETY CODE g 25249.5; 21 by serving a true copy of the above-described document in the following manner: 22 BY ELECTRONIC MAIL DELIVERY 23 24 The above-described documents were transmitted via Electronic Mail Delivery to the following parties on July 10, 2020: 25 James Robert Maxwell 26 RJO Robert Dollar Building 311 California St., 27 10th Floor 28 San Francisco, CA, 94104 -1- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF IIEALTH & SAFETY CODE $ 25249.5 jmaxwell@rjo.corn Attorney Defendant I declare under penalty of perjury under the laws of California and of the United States of America that the above is true and correct. Executed on July 10, 2020, at Bala Cynwyd, Pennsylvania. Evan J. Smith 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -2- FIRST AMENDED COMPLAINT FOR CIVIL PENALTIES AND INJUNCTIVE RELEIF- VIOLATION OF HEALTH & SAFETY CODE Il25249.5