answer of defendants for complaint of civil penalties and injunctive r

Cal. Super. - 1st Dist.March 25, 2020

1 PYNG SOON, STATE BAR NO. 243013 LAWOFFICES OF PYNG SOON, INC. 2 17870 Castleton St., Suite 215 Los Angeles, CA 90013 Telephone: (626) 271-5277 Facsimile: (888) 889-9270 4 Attorney for Defendants USA Miniso Depot, Inc.; Miniso Depot CA Inc. SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SAN FRANCISCO (Unlimited Jurisdiction) 10 CENTER FOR ADVANCEDPUBLIC AWARENESS, Case No.: CGC-19-574721 13 14 v Plaintiff, ANSWER OF DEFENDANTS FOR COMPLAINTOF CIVIL PENALTIES AND INJUNCTIVE RELIEF 15 USA M1NISO DEPOT INC; MINISO DEPOT CA INC.; and DOES 1-30, inclusive, 16 Defendants. 17 18 20 22 23 25 26 27 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINTFOR CIVILPENALTIES AND INJUNCTIVE RELIEF ELECTRONICALLY F I L E D Superior Court of California, County of San Francisco 05/17/2019 Clerk of the Court BY: JUDITH NUNEZ Deputy Clerk 1 COME NOW Defendants USA MINISO INC., and MINISODEPOT CA INC. ("Defendants" ), for themselves and no other defendant, and in response to PlaintiffCENTER FOR 3 ADVANCEDPUBLIC AWAREbKSS, ("Plaintiffs") Complaint for CivilPenalties and Injunctive Relief 4 ("Complaint" ), allege, deny and aver as follows: GENERAL DENIAL 1. Pursuant to Code ofCivilProcedure section 431.30, Defendants deny the 8 allegations ofPlaintiffs Complaint, and each cause ofaction, and each paragraph in each cause ofaction 9 and each and every part thereof. 10 2. Defendants further deny that, by reason of any act or omission, fault, conduct, or liabilityon the part ofeither of these answering Defendants, whether negligent, careless, unlawful, oi whether as alleged as otherwise, they "knowingly and intentionally" exposed any persons to chemicals 14 listed pursuant to 27 Cal. Code Regs. section 27001 without first providing "clear and reasonable 15 warning" pursuant to Health & Safety Code section 25249.6, or that Defendants are liable in any 16 manner for any penalties or other costs, or that injunctive or any other relief is appropriate. 18 AFFIRMATIVEDEFENSES 19 FIRST AFFIRMATIVEDEFENSE (Failure to State a Cause of Action) 3. The Complaint, and each of its purported causes ofaction, fails to state facts 21 sufficient to constitute a cause ofaction against either Defendant. 23 24 25 28 SECOND AFFIRMATIVEDEFENSE (Due Process Violation) To the extent Plaintiffpurports to seek reliefon behalf ofmembers of the general public who have suffered no damages, the Complaint and its claim for relief therein violate the right ofeach Defendant to due process under the California and United States Constitutions. THIRDAFFIRMATIVEDEFENSE DEFENDANT'S ANSWER TO PLAINTIFF'SCOMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEF (Statutes ofLimitation) 5. Plaintiffs claims are barred in whole or in part by the applicable statute of limitation, California Code ofCivilProcedure section 338(a) and/or 340(a), and any other applicable 4 provision ofCalifornia law. 5 FOURTH APFIRMATIVEDEFENSE (Lack of Subject Matter Jurisdiction) 6. The court does not have subject matter jurisdiction over the Complaint. 10 PIPTH APFIRMATIVEDEFENSE (Federal Preemption) 7. The Complaint, and each claim for relief therein, is barred by the Supremacy Clause 12 13 14 of the United States Constitution. SIXTHAFFIRMATIVEDEFENSE (Abstention) 8. PlaintiiTs claims for relief should be denied under the equitable doctrine of 15 abstention. 18 SEVENTH AFFIRMATIVEDEFENSE (No Claim, Based on Non-California Conduct) 9. Plaintiff's claims are barred in whole of in part to the extent they are based on alleged 20 acts, conduct or statements that were undertaken, made or received outside ofCalifornia. 21 23 10. EIGHTH AFFIRMATIVEDEFENSE (Red Judicata/Collateral Estoppel) Plaintiffs action is barred by the doctrines of res judicata and/or collateral estoppel. 25 26 NINTHAFPIRMATIVEDEPENSE (Laches) Plaintiffis barred by the doctrine of laches from asserting all of the claims in the Complaint. 28 TENTH APPIRMATIVEDEPENSE DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEF (Estoppel and Waiver) 12. The claims in the Complaint are barred by the doctrines ofestoppel and/or waiver. ELEVENTHAFFIRMATIVEDEFENSE (Failure to Warn by Third Party) 13. The claims in the complaint are barred to the extent they «re based on a failure to provide a warning, as such failure or omission was on the part ofpersons and entities other than 7 Defendants and said failure or omission was entirely unknown to each of the Defendants. 8 TWELFTH AFFIRMATIVEDEFENSE {No Control over Exposure) 10 14. The exposures ofwhich Plaintiffcomplains involve acts and omissions of third 11 parties and/or are not within the reasonable ability ofeither of these answering Defendants to control. 12 13 14 THIRTEENTH AFFIRMATIVEDEFENSE (Statutory Exemption) 15. Pursuant to California Health and Safety Code section 25249.10(c), ifthere wer« 15 any exposures to Listed Chemicals as alleged in the Complaint, these would be exempt from th<: 16 warning requirement of California Health and Safety Code section 25249.6 because, based on 18 evidence and standards of comparable scientific validity as those which form the scientific basis fo the listing of the listed chemicals pursuant to California Health and Safety Code section 25249.S{a < 20 and 27 California Code of Regulations section 27001, the alleged exposures pose no significan: 21 carcinogenic 1 isk and have no observable effect ofbirth defects (or reproductive harm). 22 23 24 FOURTEENTH AFFIRMATIVEDEFENSE (Uncertainty) 16. The Complaint contains allegation of violations of California Health dt Safety Code section 25249.5, et seq., {"Proposition 65") that are ambiguous and 26 unintelligible with respect to identification of products and exposures and, therefore, the 27 Complaint fails for uncertainty. 28 DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINTFOR CIVILPENALTIES AND INJUNCTIVE RELIEF FIFTEENTH AFFIRMATIVEDEFENSE (Statutes are Unconstitutional as Applied) 17. PlaintifFs claims violate each Defendant's rights under the United States and California Constitutions in that, among other things: (1) Plaintiffis attempting to enforce Proposition 65 in a manner that renders the requirements of that statute and regulation unconstitutionally vague; and (2) 6 given the vague, overbroad and uncertain nature of Plaintiffs allegations, requiring each Defendant to 7 prove that the alleged exposures cause no significant risk and/or have no observable effect violates each 8 9 Defendant's due process and other constitutional rights. 10 SIXTEENTHAFFIRMATIVEDEFENSE (Failure to Join Necessary and/or Indispensable Parties) 12 18. Plaintiffs Complaint fails to name or join all necessary parties pursuant to Code of 13 CivilProcedure sections 389 and 430.10(d). 14 SEVENTEENTH AFFIRMATIVEDEFENSE 15 (No Causation and Contribution) 19. The violations alleged by Plaintiffwere not caused legally, proximately, or in-fact, by 16 either Defendant or any actions or omissions on the part ofDefendants, and any and all violations alleged 17 in the Complaint were proximately caused or contributed to by acts, omissions, conduct, or products of 19 parties other than the Defendants, 20 21 EIGHTEENTH AFFIRMATIVEDEFENSE (Good Faith and Lack of Knowledge or Intent) 22 20. The Complaint, and each and every purported cause of action asserted against Defendants, is barred, in whole or in part, because both Defendants acted in good faith for legitimate 24 business reasons, and were neither knowingly nor intentionally causing exposure to the substance alleged, 25 nor did either Defendant have reasonable grounds to know that itallegedly exposed persons in California, 26 27 as alleged in the Complaint, to a chemical known to the State ofCalifornia to create a significant risk of 28 cancer or cause birth defects or other reproductive harm. DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEF NINETEENTHAFFIRMATIVEDEFENSE (No Exposure) 3 21. Neither Defendant's acts and products have caused any exposure as alleged in the 4 Complaint to any individual to the substances alleged. TWENTIETHAFFIRMATIVEDEFENSE (Comparative Fault) 7 22. The violation alleged by Plaintiff were caused or contributed to, directly and 8 proximately, in whole or in part, by negligence, fault, acts, breaches, omissions, or other wrongful 9 conduct of Plaintiffor others, whether individual, corporate, associate, or otherwise, and whether or not 10 11 parties to this action, which are not chargeable to or against either Defendant, so that any recovery by Plaintiffmust be apportioned in direct proportion to such fault in accordance with applicable law. 13 14 TWENTY-FIRSTAFFIRMATIVEDEFENSE (Inadequate Notice) 15 23. Some or all ofthe claims alleged in the Complaint are barred or cannot be 16 maintained because Plaintifffailed to fullycomply with the requirements set forth inCalifornia 17 Health and Safety Code Section 25249.7 and its implementing regulations. 18 19 TWENTY-SECOND AFFIRMATIVEDEFENSE (No Basis for Injunctive Relief) 20 24. No threat ofharm exists sufficient to support a grant of injunctive relief. 21 TWENTY-THIRDAFFIRMATIVEDEFENSE 22 (Commerce Clause Violation) 23 25. Plaintiffseeks to apply California Health and Safety Code Section 25249.6 24 25 in a manner that would pose an impermissible burden on interstate commerce under the United States Constitution. 27 // DEFENDANT'S ANSWER TO PLAINTIFF'S COMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEF TWENTY-POURTHAFFIRMATIVEDEPENSE (Excessive Fines) 4 26. Recovery ofthe fines and penalties sought by Plaintiffis unconstitutional because 5 such fines or penalties are excessive and violate the Excessive Fines Clause of the Eighth 6 Amendment ofthe United States Constitution, section I ofthe Fourteenth Amendment ofthe United 7 States Constitution, and other provisions of the United States Constitution, the Excessive Fines 9 Clause ofArticle I, section 17 ofthe California Constitution, and other provisions ofthe California Constitution. 12 TWENTY-FIFTHAFFIRMATIVEDEFENSE (Intervening Cause) 13 27, The Complaint, and each of its purported causes of action, is barred 14 because the violations alleged in the Complaint were the result ofsuperseding or intervening 15 causes arising from the acts or omissions ofparties which neither Defendant controlled nor 16 had any legal right to control, and said violations were not proximately or otherwise caused 1 s by any act, omission or other conduct ofeither Defendant. 19 20 2! TWENTY-SIXTHAPPIRMATIVEDEPENSE (Reservation ofRights to Assert Additional Defenses) 28. Neither Defendant has knowingly or voluntarily waived any applicable affirmative defenses and both Defendants reserve the right to assert and rely on such other 23 applicable affirmative defenses as may become available or apparent during discovery 24 proceedings. Each Defendant further reserves the right to amend its answer and/or 25 affirmative defenses accordingly and/or to declare additional affirmative defenses that it 27 determines are applicable during the course of subsequent discovery. 28 DEFENDANT'S ANSWER TO PLAINTIFF'SCOMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEF PRAYER WHEREFORE, Defendant(s) prays for judgment as follows: A. That Plaintifftake nothing by reason of the Complaint or any claims stated therein; B. That the Complaint and each cause of action contained therein be dismissed against both Defendants with prejudice; C. That both Defendants recover their costs, disbursements, expenses, and 10 attorneys'ees herein; and D. That the Court grant such other and further relief as it may deem just and 12 proper. 13 Dated: May 16,2019 15 Law Offices ofPyng Soon, Inc. 16 17 18 19 20 21 Attorney for Defendants USA Miniso Depot Inc. and Miniso Depot CA Inc. 22 23 24 25 26 27 28 DEFENDANT'S ANSWER TO PLAINTIFF'SCOMPLAINTFOR CIVILPENALTIES AND INJUNCTIVERELIEP PROOF OF SERVICE I am employed in the County ofOrange, State ofCaliforni. I am over the age ofeighteen and not a party to the withinaction. Mybusiness address is 6940 Beach Blvd., Unit D-413, Buena Park, CA 90621. On May 17, 2019, I served the followingdocument{s) described as: ANSWER OF DEFENDANTS FOR COMPLAINTOF CIVILPENALTIES AND INJUNCTIVERELIEF 7 on the following interested parties in this action: 8 9 10 12 13 14 15 16 17 18 19 20 KIMBERLYGATES, ESQ. 2822 MGRAGAST. SAN FIIANctsco, CA 94122 [X] BYU.S. MAIL: I enclosed the documents in a sealed envelope or package addressed to the persons at the addresses listed above, and placing the envelope for collection and mailing, followingordinary business practices. I am readily familiarwith the business's practice for collecting and processing correspondence mailing. On the same day that correspondence is placed for collection and mailing, it is deposited in the ordinary course of business with the United States Postal Service, in a sealed envelope with postage fullyprepaid. [ ] BY ELECTRONIC SERVICE: Based on a court order or an agreement of the parties to accept electronic service, I caused the documents to be sent to the persons at the electronic service addresses listed above. BY FAX TRANSMISSION: Based on an agreement of the parties to accept service by fax transmission, I faxed the documents to the persons at the fax numbers listed above. No error was reported by the fax machine that I used. A copy of the record of the fax transmission, which was printed out, is attached. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on May 17, 2019, at Buena Park, California. 21 22 23 Ellen Im 25 26 27 28