A California appeals court has affirmed the dismissal of Proposition 65 (Prop. 65) lawsuits filed against fast-food restaurants by the vegetarian and animal- rights advocacy organization Physicians Committee for Responsible Medicine (PCRM), finding that the organization failed to conduct the requisite inves- tigation into the warning signs posted in the defendants’ restaurants before certifying the merit of its 60-day notices to the companies, attorney general and local prosecuting entities. PCRM v. Applebee’s Int’l, Inc., No. B243908  (Cal. Ct. App., decided February 27, 2014). At issue were warnings about the chemical PhIP, known to the state to cause cancer, created during the chicken grilling process. Details about the lower court’s ruling appear in Issue 450 of this Update.

Reciting the lengthy litigation history, which involved a number of amended complaints, the court emphasized the statements that the plaintiff’s counsel made during hearings on demurrers to the pleadings and deemed them binding admissions that “PCRM had not conducted a factual investigation regarding warnings before filing the lawsuit. . . . under the requirements of the statute and regulations, the 60-day notice requires that a plaintiff have sufficient information at the time of filing suit to support a reasonable basis for concluding that there is merit to each element of the action on which the plaintiff will have the burden of proof, which includes whether a defendant posts clear and reasonable warnings.” Because PCRM lacked the required information, the appeals court determined that the lower court properly sustained the defendants’ demurrers without leave to amend.

According to the court, “PCRM conceded that when PCRM’s counsel executed the certificate of merit before filing suit in 2008, PCRM did not know what warning signs were posted and how they were posted in 2007. . . .PCRM cannot cure this defect in its notice and certificate of merit by later conducting discovery into the warnings given before the filing of the lawsuit.” The court further observed, “A Proposition 65 lawsuit filed without adequate investigation into whether and how defendants post clear and reasonable warnings is susceptible to endless mutations and amendments, leaving defendants like those in this case to answer conflicting and contradictory allegations in each successive iteration of the complaint. The statutory requirements of notice and a supporting certificate of merit are intended to prevent such improvident lawsuits.”