Preview
@ ‘ACT 2351599
ARNOLD & PORTER KAYE SCHOLER LLP
Trenton H. Norris (164781)
Sarah Esmaili (206053) FILE
Three Embarcadero Center, 10th Floor
San Francisco, CA 94111
ALAMEDA County
Telephone: 415.471.3100
£&
Facsimile: 415.471.3400
trent.norris@arnoldporter.com
WN
sarah.esmaili@arnoldporter.com
HN
Attorneys for Defendant
MONDELEZ GLOBAL, LLC
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SUPERIOR COURT OF THE STATE OF CALIFORNIA
IN AND FOR THE ¢ TOUNTY OF ALAMEDA
10
11 ENVIRONMENTAL HEALTH ADVOCATES, Case No.: RG21087487
INC.,
12 DEFENDANT MONDELEZ GLOBAL
Plaintiff, LLC’S ANSWER TO COMPLAINT
13
Vv. Judge: Hon. James Reilly
14 Dept.: 25
MONDELEZ GLOBAL, LLC,
15
Fite) BY FAX
Defendant.
16
17
18 Defendant Mondeléz Global LLC (“Defé sndant”’) answers the Complaint (“Complaint”) of
19 Plaintiff Environmental Health Advocates, Inc. Plaintiff’) as follows:
20 GENERAL DENIAL
21 Pursuant to California Code of Civil Pro cedure § 431.30(d), Defendant generally denies the
22 allegations of the Complaint and further denies pat Plaintiff is entitled to relief of any kind.
23 AFFIRMATIVE DEFENSES
24 Defendant sets forth below its affirmative defenses. By setting forth these affirmative
25 defenses, Defendant does not assume the burden of proving any fact, issue or element of a cause of
26 action, where such burden properly belongs to P laintiff.
27
28
DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
FIRST AFFIRMATIVE DEFENSE
(Failure to State a Claim)
Plaintiffs Complaint and the cause of action alleged therein fail to state a claim upon which
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relief may be granted against Defendant. See Cal. Code Civ. Proc. § 430.10(e).
SECOND AFFIRMATIVE DEFENSE
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(Statutory Exemption rom Warning Requirement)
DW
Pursuant to California Health & Safety Code § 25249.10(c) and its implementing
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regulations, any exposure to acrylamide as alleged in the Complaint is exempt from the warning
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requirement of California Health & Safety Code § 25249.6, because based on evidence and
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10 standards of comparable scientific validity, which form the scientific basis for the listing of
1] acrylamide pursuant to California Health & Safety Code § 25249.8(a) and California Code of
12 Regulations, title 27, § 25000, the alleged exposure poses no significant risk of cancer and does not
13 exceed the maximum allowable dose level. Further, any alleged exposure falls within the “safe
14 harbor” levels established by California Code of Regulations, title 27, §§ 25705(b)(1) and 25805(b)
15 so that there is presumptively no duty to warn.
16 THIRD AFFIRMATIVE DEFENSE
17 (Alternative Significant Risk Level)
18 Defendant has not violated California Health & Safety Code § 25249.6 because pursuant to
19 California Code of Regulations, title 27, § 25703(b), an alternate risk level applies to any alleged
20 exposure to acrylamide and, as such, the products sold by Defendant pose no significant risk of
21 cancer at the level in question.
22 FOURTH AFFIRMATIVE DEFENSE
23 (Statute of Limitations)
24 Because Plaintiff only asserts a cause of action under Proposition 65, California Health &
25 Safety Code § 25249.5 et seq., which has no specific statute of limitations provision of its own, the
26 applicable statute of limitations is provided in California Code of Civil Procedure § 340(a), which
27 bars and/or limits Plaintiff's alleged cause of action and requested relief.
28
-2-
DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
FIFTH AFF IRMATIVE DEFENSE
(General Statute of Limitations) ©
In the alternative to the Fourth Affirmative Defense, Plaintiffs alleged cause of action and
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requested relief are barred and/or limited by the applicable statutes of limitations, including, but not
limited to, California Code of Civil Procedure & § 338, 340, and 343.
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SIXTH AFFIRMATIVE DEFENSE
DD
(Violation of First Ame ndment of the Constitution)
SN
The Complaint and the alleged cause of action in it are barred, in whole or in part, because if
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Defendant is required to warn in a manner sugg esting that its products cause cancer based on the
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10 presence of acrylamide, such warning would be compelled false and misleading speech, and
11 interferes with Defendant’s rights of free speech in violation of the First Amendment to the United
12 States Constitution.
13 SEVENTH AFFIRMATIVE DEFENSE
14 (Preemption)
15 The Complaint and the alleged cause of action in it are barred, in whole or in part, because
16 this action is preempted by a conflict with federal or state law.
17 EIGHTH AFFIRMATIVE DEFENSE
18 (Primary Jurisdiction / Abstention)
19 The Complaint and the alleged cause of action in it are barred, in whole or in part, by the
20 primary jurisdiction doctrine and/or the doctrine| of abstention.
21 NINTH AFFIRMATIVE DEFENSE
22 (Equitable Defenses)
23 The Complaint and the cause of action eged therein are barred, in whole or in part, by the
24 equitable doctrines of estoppel, waiver, laches, d unclean hands.
25 TENTH AFFIRMATIVE DEFENSE
26 (Acts of Third Parties)
27 Any and all violations alleged in the Complaint were proximately caused or contributed to
28 by the acts, omissions, conduct, or products of parties other than Defendant, and for this reason, the
-B-
DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
Complaint fails to state facts sufficient to const tute a cause of action against Defendant, or,
alternatively, Defendant is entitled to contributi on from such other parties.
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ELEVENTH AFF IRMATIVE DEFENSE
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(Pr oration)
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If Defendant has any liability herein, it j s entitled to an appropriate proration of civil
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penalties and other relief because of the fault of other parties.
iOD)
TWELFTH AFFI IRMATIVE DEFENSE
(No Basis for, Injunctive Relief)
No threat of immediate harm exists suff icient to support a grant of injunctive relief.
10 THIRTEENTH AF! FIRMATIVE DEFENSE
vl (No Basis for Equitable Relief)
12 Plaintiff is not entitled to equitable relie f because Defendant is not presently engaged in the
13 challenged conduct nor does Defendant have any intention of doing so in the future.
14 FOURTEENTH AF FIRMATIVE DEFENSE
15 (Jurisdiction and Standing)
16 Plaintiff did not comply with the requirements of California Health & Safety Code
17 § 25249.7 and/or applicable regulations, including but not limited to California Code of
18 Regulations, title 27, § 25903; therefore, the Co urt has no jurisdiction over this action and/or
19 Plaintiff has no standing or capacity to sue.
20 FIFTEENTH AFFIRMATIVE DEFENSE
21 (No Public Benefit)
22 The action does not concern an important right affecting the public interest; the action
23 cannot confer a significant benefit upon the general public or a large class of persons; the action
24 does not carry a necessity of private enforcement; and justice requires that attorneys’ fees and costs
25 should be paid out of any recovery, if any.
26
27
28
414-
DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
SIXTEENTH AFHFIRMATIVE DEFENSE
(Uncertainty Of Pleadings)
The Complaint is uncertain, vague, ambiguous, and unintelligible. Further, the Complaint
fails to identify sufficiently the alleged ai of Proposition 65.
+
SEVENTEENTH AFFIRMATIVE DEFENSE
MN
(Failure To Allege with Particularity)
DN
Plaintiff has not set out the cause of action and allegations with sufficient particularity to
NSN
permit Defendant to raise all appropriate defenses and thus Defendant reserves the right to add
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additional defenses as the factual bases for Plaintiff's alleged cause of action and allegations
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10 become known.
11
12 PRAYER
13 WHEREFORE, Defendant prays for judgment as follows:
14 1, That the Complaint, and the cause of action alleged therein, be dismissed with
15 prejudice and that Plaintiff take nothing by this action;
16 2. For costs of suit, including attorneys’ fees, incurred herein; and,
17 3. For such other and further relief as the Court may deem just and proper.
18
Dated: June 24, 2021 ARNOLD & PORTER KAYE SCHOLER LLP
19
20
21
By: _ We
22 Sarah Esmaili
23
Attorneys for Defendant
MONDELEZ GLOBAL LLC
24
25
26
27
28
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DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
\ PROOF OF SERVICE
I am over eighteen years of age and notia party to this action. I am employed in the County
of San Francisco, State of California. My business address is Three Embarcadero Center, 10th
Floor, San Francisco, CA 94111.
Ff
On June 24, 2021, I served the following document(s):
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DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT
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I served the document on the following persons:
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Noam Glick Craig M. Nicholas
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GLICK LAW GROUP, PC Jake Schulte
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225 Broadway, Suite 1900 NICHOLAS & TOMASEVIC, LLP
San Diego, CA 92101 225 Broadway, Suite 1900
10
noam@glicklawgroup.com San Diego, CA 92101
1] _ cnicholas@nicholaslaw.org
Jschulte@nicholaslaw.org
12
The document was served by the follow ing means:
13
By Electronic Service (E-mail). I trans smitted the document(s) to the persons at the
14
electronic notification addresses listed above on June 24, 2021, before 5:00 p.m. PDT.
15
I declare under penalty of perjury under the laws of the State of California that the foregoing
16
is true and correct.
17
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Dated: June 24, 2021
19
Delicia Soza
20
21
22
23
24
25
26
27
28
"PROOF OF SERVICE
I am over
¢ eighteen years of age and not a party to ‘this action. lam employed iin the County 7
. of San Francisco, State of California. My business address is Three Embarcadero Center: 10th -
Floor, San Fraiicisco, CA ail.
On June 24, 2021, J served the following document(s):
| DEF ENDANT MONDELEZ GLOH AL LLC S ANSWER TO COMPLAINT
The document(s were: served by the. f lowing means:
‘BylUS. Mai 1 a enclosed the. document(s) ina sealed envelope(s) or. package addressed to:
Noam: Glick: Craig M. Nicholas
. GLICK LAW. GROUP, PC. « Jake Schulte.
- 225 Broadway, Suite 1900 . ‘NICHOLAS. & TOMASEVIC, LLP
San Diego, CA 92101 * 225 Broadway, Suite 1900
- noam@glicklawgroup.com - San Diego, CA 92101
cnicholas@nicholaslaw.org
Jschulte@nicholaslaw.org
| and placed the envelopes) for collection and palling, following. our ordinary business pr actices. 1 -
am’ readily familiar with this business? ‘practice for collecting and processing. correspondence for
.
‘mailing, On the garne day the correspondence! is placed for collection and. mailing: it is deposited in
| the ordinary course of business with the Unites al States Postal Service, in a. sealed envelope with
i. postage fully prepaid,
1 am, employed i in the county where ihe ; mailing occurred. The envelope or package was
7 placed in ‘the mail at Sain Francisco; California '
- oI declare under penalty of perjury unde r the laws of the State of California that the foregoing
‘th as ‘true and correct.
| Dated: ‘June 24, 2021 - Signature: meee 2
. Thomas Scandura
Preview
@ ‘ACT 2351599 ARNOLD & PORTER KAYE SCHOLER LLP Trenton H. Norris (164781) Sarah Esmaili (206053) FILE Three Embarcadero Center, 10th Floor San Francisco, CA 94111 ALAMEDA County Telephone: 415.471.3100 £& Facsimile: 415.471.3400 trent.norris@arnoldporter.com WN sarah.esmaili@arnoldporter.com HN Attorneys for Defendant MONDELEZ GLOBAL, LLC sa SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE ¢ TOUNTY OF ALAMEDA 10 11 ENVIRONMENTAL HEALTH ADVOCATES, Case No.: RG21087487 INC., 12 DEFENDANT MONDELEZ GLOBAL Plaintiff, LLC’S ANSWER TO COMPLAINT 13 Vv. Judge: Hon. James Reilly 14 Dept.: 25 MONDELEZ GLOBAL, LLC, 15 Fite) BY FAX Defendant. 16 17 18 Defendant Mondeléz Global LLC (“Defé sndant”’) answers the Complaint (“Complaint”) of 19 Plaintiff Environmental Health Advocates, Inc. Plaintiff’) as follows: 20 GENERAL DENIAL 21 Pursuant to California Code of Civil Pro cedure § 431.30(d), Defendant generally denies the 22 allegations of the Complaint and further denies pat Plaintiff is entitled to relief of any kind. 23 AFFIRMATIVE DEFENSES 24 Defendant sets forth below its affirmative defenses. By setting forth these affirmative 25 defenses, Defendant does not assume the burden of proving any fact, issue or element of a cause of 26 action, where such burden properly belongs to P laintiff. 27 28 DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim) Plaintiffs Complaint and the cause of action alleged therein fail to state a claim upon which ww relief may be granted against Defendant. See Cal. Code Civ. Proc. § 430.10(e). SECOND AFFIRMATIVE DEFENSE ws (Statutory Exemption rom Warning Requirement) DW Pursuant to California Health & Safety Code § 25249.10(c) and its implementing sD regulations, any exposure to acrylamide as alleged in the Complaint is exempt from the warning CO requirement of California Health & Safety Code § 25249.6, because based on evidence and oOo 10 standards of comparable scientific validity, which form the scientific basis for the listing of 1] acrylamide pursuant to California Health & Safety Code § 25249.8(a) and California Code of 12 Regulations, title 27, § 25000, the alleged exposure poses no significant risk of cancer and does not 13 exceed the maximum allowable dose level. Further, any alleged exposure falls within the “safe 14 harbor” levels established by California Code of Regulations, title 27, §§ 25705(b)(1) and 25805(b) 15 so that there is presumptively no duty to warn. 16 THIRD AFFIRMATIVE DEFENSE 17 (Alternative Significant Risk Level) 18 Defendant has not violated California Health & Safety Code § 25249.6 because pursuant to 19 California Code of Regulations, title 27, § 25703(b), an alternate risk level applies to any alleged 20 exposure to acrylamide and, as such, the products sold by Defendant pose no significant risk of 21 cancer at the level in question. 22 FOURTH AFFIRMATIVE DEFENSE 23 (Statute of Limitations) 24 Because Plaintiff only asserts a cause of action under Proposition 65, California Health & 25 Safety Code § 25249.5 et seq., which has no specific statute of limitations provision of its own, the 26 applicable statute of limitations is provided in California Code of Civil Procedure § 340(a), which 27 bars and/or limits Plaintiff's alleged cause of action and requested relief. 28 -2- DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT FIFTH AFF IRMATIVE DEFENSE (General Statute of Limitations) © In the alternative to the Fourth Affirmative Defense, Plaintiffs alleged cause of action and we requested relief are barred and/or limited by the applicable statutes of limitations, including, but not limited to, California Code of Civil Procedure & § 338, 340, and 343. ws SIXTH AFFIRMATIVE DEFENSE DD (Violation of First Ame ndment of the Constitution) SN The Complaint and the alleged cause of action in it are barred, in whole or in part, because if So Defendant is required to warn in a manner sugg esting that its products cause cancer based on the Oo 10 presence of acrylamide, such warning would be compelled false and misleading speech, and 11 interferes with Defendant’s rights of free speech in violation of the First Amendment to the United 12 States Constitution. 13 SEVENTH AFFIRMATIVE DEFENSE 14 (Preemption) 15 The Complaint and the alleged cause of action in it are barred, in whole or in part, because 16 this action is preempted by a conflict with federal or state law. 17 EIGHTH AFFIRMATIVE DEFENSE 18 (Primary Jurisdiction / Abstention) 19 The Complaint and the alleged cause of action in it are barred, in whole or in part, by the 20 primary jurisdiction doctrine and/or the doctrine| of abstention. 21 NINTH AFFIRMATIVE DEFENSE 22 (Equitable Defenses) 23 The Complaint and the cause of action eged therein are barred, in whole or in part, by the 24 equitable doctrines of estoppel, waiver, laches, d unclean hands. 25 TENTH AFFIRMATIVE DEFENSE 26 (Acts of Third Parties) 27 Any and all violations alleged in the Complaint were proximately caused or contributed to 28 by the acts, omissions, conduct, or products of parties other than Defendant, and for this reason, the -B- DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT Complaint fails to state facts sufficient to const tute a cause of action against Defendant, or, alternatively, Defendant is entitled to contributi on from such other parties. WN ELEVENTH AFF IRMATIVE DEFENSE Ww (Pr oration) > If Defendant has any liability herein, it j s entitled to an appropriate proration of civil nw penalties and other relief because of the fault of other parties. iOD) TWELFTH AFFI IRMATIVE DEFENSE (No Basis for, Injunctive Relief) No threat of immediate harm exists suff icient to support a grant of injunctive relief. 10 THIRTEENTH AF! FIRMATIVE DEFENSE vl (No Basis for Equitable Relief) 12 Plaintiff is not entitled to equitable relie f because Defendant is not presently engaged in the 13 challenged conduct nor does Defendant have any intention of doing so in the future. 14 FOURTEENTH AF FIRMATIVE DEFENSE 15 (Jurisdiction and Standing) 16 Plaintiff did not comply with the requirements of California Health & Safety Code 17 § 25249.7 and/or applicable regulations, including but not limited to California Code of 18 Regulations, title 27, § 25903; therefore, the Co urt has no jurisdiction over this action and/or 19 Plaintiff has no standing or capacity to sue. 20 FIFTEENTH AFFIRMATIVE DEFENSE 21 (No Public Benefit) 22 The action does not concern an important right affecting the public interest; the action 23 cannot confer a significant benefit upon the general public or a large class of persons; the action 24 does not carry a necessity of private enforcement; and justice requires that attorneys’ fees and costs 25 should be paid out of any recovery, if any. 26 27 28 414- DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT SIXTEENTH AFHFIRMATIVE DEFENSE (Uncertainty Of Pleadings) The Complaint is uncertain, vague, ambiguous, and unintelligible. Further, the Complaint fails to identify sufficiently the alleged ai of Proposition 65. + SEVENTEENTH AFFIRMATIVE DEFENSE MN (Failure To Allege with Particularity) DN Plaintiff has not set out the cause of action and allegations with sufficient particularity to NSN permit Defendant to raise all appropriate defenses and thus Defendant reserves the right to add Oo additional defenses as the factual bases for Plaintiff's alleged cause of action and allegations oO 10 become known. 11 12 PRAYER 13 WHEREFORE, Defendant prays for judgment as follows: 14 1, That the Complaint, and the cause of action alleged therein, be dismissed with 15 prejudice and that Plaintiff take nothing by this action; 16 2. For costs of suit, including attorneys’ fees, incurred herein; and, 17 3. For such other and further relief as the Court may deem just and proper. 18 Dated: June 24, 2021 ARNOLD & PORTER KAYE SCHOLER LLP 19 20 21 By: _ We 22 Sarah Esmaili 23 Attorneys for Defendant MONDELEZ GLOBAL LLC 24 25 26 27 28 5- DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT \ PROOF OF SERVICE I am over eighteen years of age and notia party to this action. I am employed in the County of San Francisco, State of California. My business address is Three Embarcadero Center, 10th Floor, San Francisco, CA 94111. Ff On June 24, 2021, I served the following document(s): OO DEFENDANT MONDELEZ GLOBAL LLC’S ANSWER TO COMPLAINT BDO I served the document on the following persons: SN Noam Glick Craig M. Nicholas Oo GLICK LAW GROUP, PC Jake Schulte oOo 225 Broadway, Suite 1900 NICHOLAS & TOMASEVIC, LLP San Diego, CA 92101 225 Broadway, Suite 1900 10 noam@glicklawgroup.com San Diego, CA 92101 1] _ cnicholas@nicholaslaw.org Jschulte@nicholaslaw.org 12 The document was served by the follow ing means: 13 By Electronic Service (E-mail). I trans smitted the document(s) to the persons at the 14 electronic notification addresses listed above on June 24, 2021, before 5:00 p.m. PDT. 15 I declare under penalty of perjury under the laws of the State of California that the foregoing 16 is true and correct. 17 18 Dated: June 24, 2021 19 Delicia Soza 20 21 22 23 24 25 26 27 28 "PROOF OF SERVICE I am over ¢ eighteen years of age and not a party to ‘this action. lam employed iin the County 7 . of San Francisco, State of California. My business address is Three Embarcadero Center: 10th - Floor, San Fraiicisco, CA ail. On June 24, 2021, J served the following document(s): | DEF ENDANT MONDELEZ GLOH AL LLC S ANSWER TO COMPLAINT The document(s were: served by the. f lowing means: ‘BylUS. Mai 1 a enclosed the. document(s) ina sealed envelope(s) or. package addressed to: Noam: Glick: Craig M. Nicholas . GLICK LAW. GROUP, PC. « Jake Schulte. - 225 Broadway, Suite 1900 . ‘NICHOLAS. & TOMASEVIC, LLP San Diego, CA 92101 * 225 Broadway, Suite 1900 - noam@glicklawgroup.com - San Diego, CA 92101 cnicholas@nicholaslaw.org Jschulte@nicholaslaw.org | and placed the envelopes) for collection and palling, following. our ordinary business pr actices. 1 - am’ readily familiar with this business? ‘practice for collecting and processing. correspondence for . ‘mailing, On the garne day the correspondence! is placed for collection and. mailing: it is deposited in | the ordinary course of business with the Unites al States Postal Service, in a. sealed envelope with i. postage fully prepaid, 1 am, employed i in the county where ihe ; mailing occurred. The envelope or package was 7 placed in ‘the mail at Sain Francisco; California ' - oI declare under penalty of perjury unde r the laws of the State of California that the foregoing ‘th as ‘true and correct. | Dated: ‘June 24, 2021 - Signature: meee 2 . Thomas Scandura