Filed 10/26/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

COUNCIL FOR EDUCATION 

AND RESEARCH ON TOXICS, 

Plaintiff and Appellant,

v.

STARBUCKS CORPORATION et 

al., 

Defendants and

Respondents.

 B309227/B310481

 (Los Angeles County

 Super. Ct. No. 

 BC435759)

 

APPEALS from a judgment and orders of the Superior 

Court of Los Angeles County, Elihu M. Berle, Judge. 

Affirmed in part and reversed in part.
2

Metzger Law Group, Raphael Metzger and Scott P. 

Brust for Plaintiff and Appellant Council for Education and 

Research on Toxics.

Gibson, Dunn & Crutcher, Daniel M. Kolkey, Theodore 

J. Boutrous, Jr., Patrick W. Dennis, Perlette M. Jura, Blaine 

H. Evanson and Alexander P. Swanson; Morrison & Foerster 

and James Schurz for Defendants and Respondents Apffels 

Coffee, Inc.; Quarter G, Inc.; Brad Barry Company, Ltd.; 

Caffe Calabria; Caffe Ibis, Inc.; Caribou Coffee Company, 

Inc.; Cascade Coffee, Inc.; Central Coast Coffee Roasting Co., 

Inc.; The Coca Cola Company; Coffee Bean International, 

Inc.; Coffee Roasters of Arizona, Inc.; Community Coffee 

Company, Inc.; Copper Moon Coffee, LLC; Dona Mireya, 

Inc.; Eight O’Clock Coffee Company; Equator Coffee & Teas; 

F. Gavina & Sons, Inc.; Falcon Trading Company, Inc.; 

Godiva Chocolatier, Inc.; Gold Medal Products Co.; Illy Caffe 

North America, Inc.; Intelligentsia Coffee & Tea, Inc.; 

International Coffee & Tea, LLC; James C. Cannell Coffees, 

Inc.; JBR, Inc.; The J.M. Smucker Company; Kauai Coffee 

Company LLC; Keurig Dr Pepper; The Kraft Heinz 

Company; Lavazza Premium Coffees Corp.; Massimo Zanetti 

Beverage USA, Inc.; Mayorga Coffee, LLC; Melitta U.S.A., 

Inc.; Montana Coffee Traders, Inc.; Mother Parkers Tea & 

Coffee, Inc.; Napa Valley Coffee Roasting Company, LLC; 

Nestle USA, Inc.; New England Partnership, Inc.; Paradise 

Beverages, Inc.; Peerless Coffee Co., Inc.; Peet’s Operating 

Company, Inc.; Quartermaine Coffee Roasters; Regal 

Commodities; Rowland Coffee Roasters, Inc.; S & D Coffee, 
3

Inc.; Sara Lee Corporation; Smucker Foodservice, Inc.; 

Southern Wine and Spirits of America, Inc.; Starbucks 

Corporation; Starbucks Holding Company; Steep & Brew, 

Inc.; Verve Pacific Avenue Café, LLC; Victor Allen’s Coffee, 

LLC; Vilore Foods Company, Inc.; and Zavida Coffee 

Company, Inc.

Varner & Brandt, Richard D. Marca, and Angelica 

Acosta Samaniego for Defendant and Respondent Stater 

Bros Markets.

O’Melveny & Myers, Dawn Sestito, Adam Levine, and 

Kate Ikehara for Defendants and Respondents Trader Joe’s 

Company and Mountanos Brothers Coffee Company.

Blaxter Blackman and J.T. Wells Blaxter for 

Defendants and Respondents Whole Foods Market 

California, Inc.; Allegro Coffee Company. 

Bryan Cave Leighton Paisner and Megan Irwin for 

Defendant and Respondent Kerry Inc.

Aronowitz Skidmore Lyon, Lawrence E. Skidmore 

Kathleen C. Lyon, and Erin J. Tognetti for Defendant and 

Respondent L. Paul Phillips.

Arnold & Porter Kaye Scholer, Trenton H. Norris and 

Brian K. Condon for Defendant and Respondent Dunkin’ 

Brands, Inc.

Rogers Joseph O’Donnell, Renee D. Wasserman, and 

Alecia Cotton for Defendants and Respondents Costco 

Wholesale Corporation and Bristol Farms 
4

Nixon Peabody, Gregory P. O’Hara and Lauren M. 

Michals for Defendants and Respondents Ralphs Grocery 

Company and The Kroger Co.

Norton, Rose Fulbright US, Jeffrey B. Margulies, and 

Lauren Shoor for Defendants and Respondents Target 

Corporation; Safeway Inc.; Albertsons LLC; Sprouts Farmers 

Markets LLC; Reily Foods Company; H.N. Fernandez, Inc. 

Pillsbury Winthrop Shaw Pittman, Thomas L. Van 

Wyngarden, and Stephanie Angkadjaja for Defendants and 

Respondents Wal-Mart Stores, Inc. and Sam’s West, Inc.

Rob Bonta, Attorney General, Edward H. Ochoa, 

Senior Assistant Attorney General, and Laura J. Zuckerman 

and Tatiana K. Gaur, Deputy Attorneys General, for 

California Office of Environmental Health Hazard 

Assessment as Amicus Curiae.

_____________________________________________

INTRODUCTION

The Council for Education and Research on Toxics

(CERT) brought these actions under Proposition 651 (Prop. 

65) against respondents, dozens of companies that roast, 

distribute, or sell coffee.2 CERT claimed that respondents 

1 The Safe Drinking Water and Toxic Enforcement Act of 

1986. (Health & Saf. Code, § 25249.5 et seq.) 

2 “Proposition 65 prohibits any person, in the course of doing 

business, from knowingly and intentionally exposing any 

(Fn. is continued on the next page.)
5

had failed to provide required Prop. 65 warnings for their 

coffee products based on the presence of acrylamide, which is 

included in the Prop. 65 list of known carcinogens and is 

naturally produced in coffee as a result of the roasting and 

brewing processes.

While the litigation was pending, the Office of 

Environmental Health Hazard Assessment (the Agency), 

charged with implementing Prop. 65, adopted a new 

regulation providing that “[e]xposures to chemicals in coffee, 

listed on or before March 15, 2019 as known to the state to 

cause cancer, that are created by and inherent in the 

processes of roasting coffee beans or brewing coffee do not 

pose a significant risk of cancer.” (Cal. Code Regs., tit. 27, 

§ 25704; the Coffee Regulation.) This regulation meant that 

coffee generally did not require Prop. 65 warnings. 

Respondents then moved for summary judgment, asserting 

the Coffee Regulation as a defense, while CERT moved for 

summary adjudication, challenging the regulation’s validity 

on various grounds. In opposing summary judgment, CERT 

also contended that regardless of the regulation, triable 

issues remained regarding the presence of acrylamide 

resulting from additives (plant roots, nuts, and seeds) in 

some coffee products, which the regulation did not address.

It requested a continuance to conduct discovery regarding 

individual to a chemical known to the state to cause cancer or 

reproductive toxicity without giving a specified warning, . . . 

except as specified. (§ 25249.5 et seq.)” (DiPirro v. American 

Isuzu Motors, Inc. (2004) 119 Cal.App.4th 966, 969-970.)
6

additives in respondents’ products. The trial court denied 

CERT’s motions and granted summary judgment for 

respondents, concluding that the Coffee Regulation was 

valid and dispositive of CERT’s actions, and that claims 

regarding additives were outside the scope of the actions.

After the court entered judgment for respondents, 

CERT moved to recover attorney fees from some of the 

respondents, on the basis that its litigation efforts catalyzed 

those respondents to post Prop. 65 warnings voluntarily 

during the pendency of its actions. The trial court denied 

CERT’s motion, concluding it was ineligible for fees because 

it had lost its case on the merits and conferred no significant 

benefit on the public. 

As relevant here, a few of the respondents (Starbucks

Corporation, Starbucks Holding Company, Seattle Coffee 

Company, Peet’s Operating Company, and Dunkin’ Brands, 

Inc.; the Section 998 respondents) sought an award of costs 

under Code of Civil Procedure section 998 (section 998), 

based on compromise offers CERT had rejected during the 

litigation. CERT moved to tax costs, contending, inter alia,

that the offers were invalid because they were conditioned 

on court approval (as required by Prop. 65), and because the 

releases they included were overbroad. The trial court 

denied the motion to tax costs and awarded the relevant 

respondents almost $700,000 in post-offer costs.

In these consolidated appeals, CERT challenges the 

trial court’s grant of summary judgment for respondents, its 

denial of its motion for fees, and its award of section 998 
7

costs. As to summary judgment, CERT contends the Coffee 

Regulation was arbitrary and capricious because: (1) the 

Agency failed to explain its departure from a prior position 

expressed in a 2005 report; (2) the Agency’s Final Statement 

of Reasons in support of the regulation failed to address 

CERT’s objection relating to the claimed departure; (3) the 

regulation is underinclusive and thus is not supported by its 

rationale; and (4) the regulation is scientifically 

unsupported.3 CERT also contends that triable issues 

remained as to acrylamide from coffee additives, and that 

the trial court should have granted a continuance for 

additional discovery on these issues. As discussed below, we 

conclude the regulation was validly adopted, and that claims 

regarding coffee additives are beyond the scope of CERT’s 

actions. Summary judgment was therefore appropriate.

Challenging the denial of attorney fees, CERT 

reiterates its position that it was entitled to fees based on 

the voluntary warnings provided by the relevant 

respondents. We agree with the trial court that in light of 

the Coffee Regulation, these temporary warnings proved 

unnecessary and therefore conferred no significant benefit 

on the public, rendering CERT ineligible for fees. 

Finally, as to the award of costs to the section 998 

respondents, CERT contends their compromise offers were 

invalid because: (1) settlement offers in Prop. 65 cases can 

3 With our permission, the Agency filed an amicus brief in 

support of affirmance.
8

never be valid under section 998, as they require court 

approval; and (2) the relevant respondents’ offers included 

overly broad releases. We agree that the releases in the 

section 998 offers were overbroad and thus rendered the 

offers invalid. Accordingly, we reverse the trial court’s 

denial of CERT’s motion to tax costs. 

BACKGROUND4

A. CERT’s Pre-Suit Notices and Actions

In 2010, CERT sent two sets of notices of violations 

under Prop. 65 to numerous companies that roasted, 

distributed, or sold coffee in California.

5 CERT’s notices 

alleged that the companies had failed to warn that their

coffee products exposed Californians to high levels of 

acrylamide, a chemical included in Prop. 65’s list of known 

carcinogens. (Office of Environmental Health Hazard 

Assessment, The Proposition 65 List, at

<https://oehha.ca.gov/proposition-65/proposition-65-list> [as 

4 We deny CERT’s motions for judicial notice and 

augmentation of the record as either irrelevant or unnecessary.

5 As discussed below, any person may bring an action under 

Prop. 65 “in the public interest” (Health & Saf. Code, § 25249.7, 

subd. (d)), provided they first give notice of the claimed violations 

to the alleged violator, the Attorney General, and others (id.,

§ 25249.7, subd. (d)(1)). A person who violates Prop. 65 is subject

to civil penalties of up to $2,500 per day for each violation (id.,

§ 25249.7, subd. (b)(1)), and a person who is suing under Prop. 65 

in the public interest is entitled to 25 percent of the penalties 

collected (id., § 25249.12, subd. (d)). 
9

of Oct. 24, 2022].) One set of notices alleged that 

“[e]xposures to acrylamide unavoidably occurred via 

ingestion whenever a consumer purchased and thereafter 

consumed the coffee produced, distributed, and/or sold by the 

above named entities.” The other set, targeting the relevant

companies’ “ready-to-drink coffee,” similarly alleged that 

“[e]xposures to acrylamide unavoidably occurred via 

ingestion whenever a consumer purchased and thereafter 

consumed the above named entities’ ready-to-drink coffee.” 

CERT subsequently filed two actions under Prop. 65 

against the previously noticed companies, repeating the 

essential allegations in its pre-suit notices. The actions were 

consolidated, and the matter proceeded through various 

phases of a bifurcated trial.

B. Trial Phases 1 and 2

At phases 1 and 2 of the trial, the court rejected 

multiple affirmative defenses asserted by respondents. The 

court also granted CERT’s motion for summary adjudication, 

concluding it had established its prima facie case against 

most of the respondents, who had stipulated to facts that 

supported CERT’s prima facie case. The matter was 

scheduled to proceed to a remedies phase in October 2018.

C. The International Agency for Research on Cancer

Monograph

On June 13, 2018, the International Agency for 

Research on Cancer (IARC) -- an authoritative body for the 
10

identification of chemicals causing cancer under Prop. 65 

(Cal. Code Regs., tit. 27, § 25306, subd. (m)(1)) -- released a

501-page monograph on the cancer risks of coffee 

consumption (the Monograph). Based on “more than 1000 

observational and experimental studies,” the Monograph 

found there was “inadequate evidence in humans and 

experimental animals for the carcinogenicity of coffee 

drinking.”6 The document acknowledged that a working 

group in 1991 had found that coffee caused cancer of the 

urinary bladder, but explained that the new working group 

focused on higher-quality epidemiological studies, which 

showed no consistent association, and suggested that the 

prior association observed in some studies was “probably due 

to inadequate control for the confounding effects of tobacco 

smoking.” 

The Monograph continued: “In considering the data 

now available for more than 20 other cancer sites in humans, 

the Working Group found evidence suggesting lack of 

carcinogenicity for cancers of the female breast, uterine 

endometrium, prostate, pancreas, and liver, and inadequate 

evidence in humans for cancers at all other sites. The 

Working Group’s review of other relevant data found strong 

6 The Monograph elsewhere defined the phrase “Inadequate 

evidence of carcinogenicity” as denoting that “[t]he available 

studies are of insufficient quality, consistency or statistical power 

to permit a conclusion regarding the presence or absence of a 

causal association between exposure and cancer, or no data on 

cancer in humans are available.” 
11

evidence in humans that coffee has antioxidant effects. As a 

result of this re-evaluation, the Working Group concluded 

that drinking coffee is not classifiable as to its 

carcinogenicity to humans . . . .” The document additionally

noted that “[i]nverse associations with drinking coffee have 

been observed with cancers of the liver and uterine 

endometrium,” suggesting that coffee reduced the risks of 

those cancers. 

D. Adoption of the Coffee Regulation

1. Proposed Regulation and Initial Statement of 

Reasons

On June 15, 2018, shortly after the IARC released its 

Monograph, the Agency published a notice of its intent to 

adopt a new regulation, to provide that “[e]xposures to listed 

chemicals in coffee created by and inherent in the processes 

of roasting coffee beans or brewing coffee do not pose a 

significant risk of cancer.”7 (Underlining omitted.) That 

same month, the Agency issued an Initial Statement of 

Reasons (ISR) in support of the proposed regulation, and 

stated that if it adopted the regulation, no cancer warnings 

would be required for exposure to the relevant chemicals in 

coffee. 

7 In the trial court, respondents unsuccessfully sought a stay 

of the remedies phase of trial pending the Agency’s adoption of 

the proposed regulation. Respondents then sought and obtained 

a stay from this court. 
12

In the ISR, the Agency noted, “Coffee is . . . unusual 

because it has been the subject of very high scientific 

interest for many years -- IARC reviewed more than 1000 

observational and experimental studies investigating the 

potential carcinogenicity of coffee in humans and animals.” 

It explained, “Coffee is unique in that it shows reductions in 

certain human cancers, has not been shown to increase any 

cancers, and is particularly rich in cancer chemopreventive 

compounds.” The ISR listed antioxidants, anti-inflammatory 

chemicals, and soluble and insoluble fiber as “constituents 

that exhibit cancer chemopreventive properties,” and cited 

numerous articles published in scientific journals to support 

its position regarding these categories of coffee constituents. 

2. Public Comments and the 2005 Report

During the public comment period, the Agency received 

numerous submissions and held a public hearing, at which it 

received oral comments. Some commentors contended that 

the Agency should assess the cancer risk from acrylamide in 

coffee in isolation, without consideration of coffee as a 

mixture. CERT objected, inter alia, that the Agency had 

failed to consider and address its own 2005 report regarding 

acrylamide intake in various foods and beverages. 

The 2005 report was prepared in support of a proposed 

regulation that was subsequently withdrawn. According to 

the report, its purpose was to “assist the public and the 

regulated community in estimating average daily intake of 

acrylamide from specific foods, and to inform the 
13

development and content of regulations proposed by OEHHA 

. . . .” Based on various data, the report estimated coffee 

drinkers’ daily intake of acrylamide from coffee, and 

concluded that coffee was a substantial source of exposure to 

acrylamide, and that drinkers likely exceeded the previously 

set “No Significant Risk Level” (NSRL) for acrylamide. The 

NSRL represents a safe harbor that protects businesses from 

liability relating to exposure to a listed chemical under Prop. 

65. If the level of exposure from a product is below the 

NSRL, the safe harbor is triggered, and no warning is 

required. (Cal. Code Regs., tit. 27, § 25705.) 

3. The Agency’s Modification of the Proposed 

Regulation

On March 15, 2019, the Agency announced it was 

modifying its proposed regulation to limit the exempted 

exposures to chemicals listed as of that date. The modified 

proposed regulation therefore provided: “Exposures to 

chemicals in coffee, listed on or before March 15, 2019 as 

known to the state to cause cancer, that are created by and 

inherent in the processes of roasting coffee beans or brewing 

coffee do not pose a significant risk of cancer.” 

4. The Agency’s Final Statement of Reasons and 

Adoption of the Regulation

Following the comment period, the Agency issued a

lengthy Final Statement of Reasons (FSR), which responded

to public comments and concluded that the available 
14

scientific information supported the regulation. The Agency 

explained that because extensive research suggested that 

coffee, as a mixture, posed no significant risk of cancer, the 

individually listed chemicals formed through the roasting 

and brewing process also posed no significant risk of cancer 

when combined and consumed in the mixture. The FSR 

listed “[the Agency]’s key overall considerations in adopting 

this regulation”:

“‘[1] There is inadequate evidence for the 

carcinogenicity of drinking coffee, based on a very 

large number of human studies.

“‘[2] There are inverse associations––decreasing 

risk with increasing coffee consumption - for 

human cancers of the liver and uterine 

endometrium.

“‘[3] There is inadequate evidence of increased 

carcinogenicity in animals administered coffee in 

controlled experiments.

“‘[4] There are inverse associations in a number of 

animal experiments and the overall evidence 

from animal studies is that of reduced incidence 

or reduced multiplicity of cancers with coffee 

intake.

“‘[5] There is a rich mix of cancer-preventative 

agents in brewed coffee.’” 

(Fns. omitted.)
15

Relying in part on the IARC Monograph, the FSR 

repeatedly noted the IARC’s conclusion that coffee was “‘not 

classifiable as to its carcinogenicity to humans.’” While the 

IARC Monograph featured prominently in the FSR, the 

Agency did not merely adopt its conclusions, and explained

that the Agency’s determination regarding the risk of cancer 

from coffee was “strongly supported by the extensive 

research evaluated and summarized by IARC and by [the 

Agency]’s evaluation of the IARC Monograph and studies 

published subsequent to the IARC review . . . .” 

In its FSR, the Agency did not expressly address 

CERT’s objection that it had failed to consider the 2005 

report and its conclusion that coffee drinkers exceeded the 

NSRL for acrylamide. However, in addressing the comments

urging the Agency to examine the risk from acrylamide in 

coffee in isolation, it explained that given the large volume of 

research regarding the cancer risk from coffee as a mixture, 

it was appropriate to assess the evidence relating to the 

mixture as a whole, and explained that “reliance on a single 

carcinogenic constituent to infer significant risk can result in 

a substantial mischaracterization of the risk profile.” In 

June 2019, the Office of Administrative Law approved the 

Coffee Regulation (as modified in March 2019). 
16

E. Respondents’ Assertion of the Regulation as a 

Defense, and the Motions for Summary Adjudication 

and Summary Judgment 

Following the Agency’s adoption of the Coffee 

Regulation, respondents moved to amend their answers to 

add the regulation as an affirmative defense, and the trial 

court granted them leave to do so. CERT then filed several

motions for summary adjudication, attacking the validity of 

the Coffee Regulation on various grounds. In turn, 

respondents moved for summary judgment based on the 

regulation.8

Following hearings, the trial court denied CERT’s 

motions for summary adjudication and granted respondents’

motion for summary judgment, rejecting CERT’s challenges 

to the Coffee Regulation’s validity. Addressing CERT’s 

contention that issues remained regarding acrylamide 

resulting from additives in some of respondents’ coffee

products, the court concluded such claims were outside the 

scope of CERT’s actions, based, inter alia, on the allegations 

in its pre-suit notices and complaints. 

8 While these motions were pending, CERT served 

respondents with document requests, seeking information 

relating to additives included in some coffee products. It then 

moved for a continuance to conduct additional discovery 

regarding this issue. The trial court did not expressly address 

CERT’s motion, but as discussed below, in granting summary 

judgment for respondents, it ruled that claims relating to coffee 

additives were outside the scope of CERT’s actions.
17

F. CERT’s Motion for Attorney Fees

After the entry of judgment, CERT moved to recover 

attorney fees from 18 of the respondents under Code of Civil 

Procedure section 1021.5. Acknowledging it had lost its case 

on the merits in the trial court, CERT claimed it was 

nevertheless a successful party entitled to fees under the 

“‘catalyst theory,’” asserting that its litigation efforts had 

caused the relevant respondents to provide Prop. 65 

warnings voluntarily during the litigation period.9

The trial court denied CERT’s motion, concluding it 

was not a successful party eligible for fees even under the 

catalyst theory, as it had lost its case on the merits. The 

court determined, alternatively, that CERT was not eligible 

for fees because it had not conferred a significant benefit on 

the public, as any warnings given during the pendency of its 

actions “were ultimately proven unnecessary for public 

health” under the Coffee Regulation. 

G. The Award of Costs under Section 998

As discussed more fully below, during the litigation, 

the section 998 respondents served statutory offers of 

compromise on CERT, which rejected the offers. After entry 

9 “Under the catalyst theory, attorney fees may be awarded 

even when litigation does not result in a judicial resolution if the 

defendant changes its behavior substantially because of, and in 

the manner sought by, the litigation.” (Graham v. 

DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 560.) 
18

of judgment, these respondents filed memoranda of costs 

seeking to recover their post-offer costs. CERT moved to tax 

costs, challenging the validity of the section 998 offers, but 

the trial court denied its motion and awarded the requested 

costs. This appeal followed. 

DISCUSSION

CERT challenges the trial court’s grant of summary 

judgment, its denial of attorney fees to CERT, and its award 

of costs to the section 998 respondents. We conclude the 

trial court properly granted summary judgment and properly 

denied CERT’s motion for fees. However, we agree with 

CERT that the court erred in awarding the relevant 

respondents costs under section 998. 

A. Summary Judgment

CERT claims the trial court erred in granting 

summary judgment for respondents and denying its motions 

for summary adjudication, because (1) the Coffee Regulation, 

on which the court’s order rested, was invalid, and (2) even 

assuming the regulation was valid, triable issues remained 

regarding acrylamide from coffee additives. As discussed 

below, we find neither contention persuasive. 
19

1. Standards of Review

a. Summary Judgment

We review the trial court’s rulings on CERT’s motions 

for summary adjudication and respondents’ motion for 

summary judgment de novo. (Gresher v. Anderson (2005) 

127 Cal.App.4th 88, 96.) A motion for summary judgment or 

summary adjudication is properly granted if the moving 

papers establish that there is no triable issue of material 

fact, and the moving party is entitled to judgment as a 

matter of law. (Code Civ. Proc., § 437c, subd. (c); Aguilar v. 

Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.)

b. Administrative Regulations

The Agency adopted the coffee regulation under its 

authority to “adopt and modify regulations . . . as necessary 

to conform with and implement [Prop. 65].” (Health & Saf.

Code, § 25249.12, subd. (a).) A regulation adopted pursuant 

to a delegation of lawmaking power has “the dignity of 

statutes.” (Yamaha Corp. of America v. State Bd. of 

Equalization (1998) 19 Cal.4th 1, 10.) “When a court 

assesses the validity of such rules, the scope of its review is 

narrow. If satisfied that the rule in question lay within the 

lawmaking authority delegated by the Legislature, and that 
20

it is reasonably necessary to implement the purpose of the 

statute, judicial review is at an end.”

10 (Id. at 10-11.) 

Our review of whether a regulation is reasonably 

necessary is limited to “whether the rule is arbitrary, 

capricious, or without rational basis [citation] and whether 

substantial evidence supports the agency’s determination 

that the rule is reasonably necessary.” (Western States 

Petroleum Assn. v. Board of Equalization (2013) 57 Cal.4th 

401, 415.) Under this standard, the challenged regulation is 

presumptively valid, and the burden is on the party 

challenging it to show that it is infirm. (Tomlinson v. 

Qualcomm (2002) 97 Cal.App.4th 934, 940-941.) In the 

absence of an arbitrary and capricious decision, we will defer 

to the agency’s expertise (Ford Dealers Assn. v. Department 

of Motor Vehicles (1982) 32 Cal.3d 347, 355), and “will not 

. . . venture into an independent determination of the 

wisdom of the challenged regulation” or “substitute our

judgment for that of the agency with respect to such things 

as the existence and weight to be accorded the facts and 

policy considerations . . . .” (Western States Petroleum Assn. 

v. State Dept. of Health Services (2002) 99 Cal.App.4th 999, 

1007.) 

10 While CERT suggests these principles are inapplicable to 

an indirect challenge to the validity of a regulation in the context 

of summary judgment, it cites no relevant authority for this 

proposition, and we are aware of none. 
21

2. Analysis

CERT challenges the regulation on multiple grounds, 

asserting: (1) the Agency failed to explain its departure from 

the prior position it expressed in the 2005 report; (2) the 

Agency’s FSR failed to address CERT’s objection based on 

the claimed departure; (3) the regulation is underinclusive 

and thus is not supported by its rationale; and (4) the 

regulation is scientifically unsupported. We address these 

contentions in turn.

a. There Was No Conflict Between the

Regulation and the 2005 Report

Citing federal caselaw applying the federal 

Administrative Procedures Act, CERT contends that an 

agency adopting a regulation contrary to its prior 

conclusions must acknowledge and explain the departure. 

Assuming, without deciding, that such a requirement exists 

under California law, we conclude it would have no 

application here, because the Coffee Regulation was not 

contrary to the Agency’s 2005 report. 

As noted, the 2005 report was a technical document

dealing with the intake levels of acrylamide in different

foods and beverages. Its purpose was to “assist the public 

and the regulated community in estimating average daily 

intake of acrylamide from specific foods, and to inform the 

development and content of regulations proposed by OEHHA

. . . .” The report concluded that coffee drinkers likely 
22

exceeded both the NSRL for acrylamide, and that coffee was 

a substantial source of exposure to acrylamide.

Contrary to CERT’s suggestion, the conclusion that 

coffee drinkers exceeded the NSRL for acrylamide did not 

encompass a determination that coffee drinking caused 

cancer. As explained above, the NSRL provides a safe 

harbor. That an exposure level exceeds the NSRL does not 

imply it presents a significant risk of cancer. “In [the 

Agency]’s words, its establishment of a[n] NSRL ‘expressly is 

not a determination that any level above the NSRL poses a 

significant risk.’” (Baxter Healthcare Corp. v. Denton (2004) 

120 Cal.App.4th 333, 358.) These safe harbor levels do not 

preclude the use of alternative levels that can be 

demonstrated to be safe. (See Cal. Code Regs., tit. 27, 

§ 25701, subd. (a) [“Nothing in this article shall preclude a 

person from using evidence, standards, risk assessment 

methodologies, principles, assumptions or levels not 

described in this article to establish that a level of exposure 

to a listed chemical poses no significant risk”].)

The 2005 report included no independent risk 

assessment and did not address whether coffee caused 

cancer or whether any cancer risk inherent in coffee 

drinking should be assessed based on the mixture or its 

constituents. Thus, the Coffee Regulation’s determination

that exposure to acrylamide inherent in coffee did not pose a 

significant risk of cancer contradicted nothing in the 2005 
23

report, and there was therefore no change of position calling 

for any explanation.11 

b. The Agency Substantially Complied with 

Its Duty to Address CERT’s Objections

i. Governing Principles

Under the California Administrative Procedures Act 

(APA), before adopting a proposed regulation, an agency 

must provide an FSR that includes, among other things, a 

summary of “each objection or recommendation made 

regarding the [proposed regulatory action], together with an 

explanation of how the proposed action has been changed to 

accommodate each objection or recommendation, or the 

reasons for making no change.” (Gov. Code, § 11346.9, subd. 

(a)(3).) An agency’s “substantial failure” to comply with the 

APA’s requirements may result in the regulation’s

invalidation. (Gov. Code, § 11350, subd. (a).) 

Construing the phrase “substantial failure” in the APA, 

the court in Sims v. Department of Corrections & 

Rehabilitation (2013) 216 Cal.App.4th 1059 (Sims) relied on 

the concept of “[s]ubstantial compliance,” which it described 

as “the counterpart, or obverse, of the substantial failure to 

comply, which negatively expresses the same idea.” (Id. at 

11 As discussed below, the Agency sufficiently explained its 

decision to forgo a quantitative assessment of coffee’s 

constituents in favor of a qualitative assessment of the mixture 

as a whole. 
24

1073.) “‘[S]ubstantial compliance . . . means actual 

compliance in respect to the substance essential to every 

reasonable objective of the statute. But when there is such 

actual compliance as to all matters of substance[,] then mere 

technical imperfections of form . . . should not be given the 

stature of noncompliance . . . .’” (Id. at 1073, quoting Stasher 

v. Harger-Haldeman (1962) 58 Cal.2d 23, 29.)

ii. Application

Although the Agency did not expressly address CERT’s 

objection that it had failed to consider the 2005 report’s 

conclusion that coffee drinkers exceeded the NSRL for 

acrylamide, it sufficiently addressed the substance of the 

objection by explaining its rejection of a quantitative NSRL 

like the one employed in the report. The Agency thus did not 

substantially fail to comply with the APA’s requirements.

As noted, the Agency addressed comments claiming

that cancer risk from acrylamide in coffee should be assessed 

in isolation, without consideration of coffee as a mixture. It 

explained that given the large volume of research concerning 

the cancer risk from coffee as a mixture, it was appropriate 

to assess the evidence relating to the mixture as a whole, 

and stated that “reliance on a single carcinogenic constituent 

to infer significant risk can result in a substantial 

mischaracterization of the risk profile.” That the Agency 

addressed the substance of CERT’s concern without 

expressly referencing the 2005 report constituted, at most, a 

“‘mere technical imperfection[] of form,’” which will not 
25

invalidate a regulation.

12 (Sims, supra, 216 Cal.App.4th at 

1073.) 

c. The Coffee Regulation is Consistent with 

the Agency’s Rationale 

Contrary to CERT’s contention, the Coffee Regulation 

is consistent with the rationale offered by the Agency. In 

adopting the regulation, the Agency explained that because 

extensive research suggested that coffee, as a mixture, posed

no significant risk of cancer, the individual listed chemicals 

formed through the roasting and brewing process also posed

no significant risk of cancer when combined and consumed 

in the mixture. We see nothing inconsistent or illogical in 

this rationale. 

CERT notes that the regulation applies only to 

chemicals listed on or before March 15, 2019, and argues it is 

12 Any technical noncompliance by the Agency in failing to 

expressly reference the 2005 report is a far cry from the 

substantial failures in the cases CERT cites in support of its 

position. (See Sims, supra, 216 Cal.App.4th at 1074 [California 

Department of Corrections and Rehabilitation violated APA by: 

failing to set forth alternatives to its proposed lethal injection 

protocol, failing to explain rejection of various alternatives, 

falsely representing how it selected proposed method, failing to 

include required documents in rulemaking file, and failing to 

make file publicly available in timely manner]; Mountain Lion 

Foundation v. Fish & Game Com. (1997) 16 Cal.4th 105, 133 

[noting Office of Administrative Law’s disapproval of regulatory 

action where agency’s final statement of reasons failed to include 

any summary and response to public comments].) 
26

arbitrary and capricious because “[i]f [the Agency’s]

rationale for the regulation were true and valid, there would 

be no basis for excluding unlisted carcinogens from the scope 

of the regulation” because “unlisted carcinogens in coffee 

could no more present a significant risk of cancer . . . than 

could listed carcinogens.” But “regulations are ‘not invalid 

merely because they are to some extent underinclusive or 

overinclusive . . . .’” (State Farm General Insurance 

Company v. Lara (2021) 71 Cal.App.5th 148, 183.) The 

Agency was entitled to address currently listed chemicals 

first, saving for another day any chemicals inherent in the 

roasting and brewing of coffee that might be listed in the 

future. (See ibid.; Western States Petroleum Assn. v. Board 

of Equalization, supra, 57 Cal.4th at 421 [regulation that 

singled out petroleum refineries, even though its rationale 

applied to other types of industrial facilities as well, was not 

arbitrary and capricious]; cf. U.S. Cellular Corp. v. F.C.C.

(D.C. Cir. 2001) 254 F.3d 78, 86 [“agencies need not address 

all problems ‘in one fell swoop,’” and “‘[r]eform may take 

place one step at a time, addressing itself to the phase of the 

problem which seems most acute to the [regulatory] mind’”].) 

The regulation is therefore consistent with its rationale. 

d. CERT Has Not Shown That the Coffee 

Regulation Lacks Scientific Foundation

CERT claims the regulation lacks scientific foundation 

for several reasons. It contends: (1) Lockheed Litigation 

Cases (2004) 115 Cal.App.4th 558 (Lockheed) held that IARC 
27

monographs are insufficiently reliable; (2) the IARC is not 

an authoritative body for cancer risk assessment; (3) the 

Agency misrepresented the IARC’s conclusions in various 

ways; and (4) the Agency relied in part on an unsupported 

finding that antioxidants in coffee had an anti-carcinogenic 

effect. We find none of these contentions convincing. 

First, CERT cites Lockheed for the proposition that an 

IARC monograph regarding a chemical mixture is 

scientifically unreliable for purposes of determining human 

cancer risk from a chemical within the mixture. Lockheed is 

inapposite. There, the court held that an expert could not 

reasonably opine that exposure to five particular chemicals 

caused cancer based on an IARC study that found that 

“painters who potentially were exposed to a long list of more 

than 130 substances and thousands of chemical compounds 

contracted cancer” at a higher rate. (Lockheed, supra, 115 

Cal.App.4th 558, 564-565.) The court explained that the 

expert’s opinion was “based on conjecture and speculation as 

to which of the many substances to which the study subjects 

were exposed contributed to the greater incidence of cancer.” 

(Id. at 565.) This analysis has no application here, where 

the IARC Monograph evaluated the very mixture addressed

by the Coffee Regulation, and tended to negate a substantial 

risk of cancer from it. While the IARC Monograph provides 

no basis for determining the cancer risk from an individual 

constituent of coffee, like acrylamide, in isolation, the Coffee

Regulation rests on the Agency’s conclusions regarding the 
28

risk of cancer from coffee as a mixture -- a conclusion the 

Monograph tends to support. 

Second, CERT complains that “while IARC is an 

authoritative body for the identification of chemicals as to 

their carcinogenicity to humans (i.e., cancer hazard

assessment), it is not recognized as an authoritative body for 

quantifying risks of cancer from carcinogens (i.e., cancer risk 

assessment).” CERT fails to explain the significance of this 

distinction for purposes of the Agency’s reliance on the IARC 

Monograph. As the Monograph itself explains, 

“[m]onographs represent the first step in carcinogenic risk 

assessment,” and they “identify cancer hazards even when 

risks are very low at current exposure levels.” The Agency 

therefore reasonably relied on the IARC’s findings regarding 

coffee’s carcinogenicity and its Monograph’s conclusion that 

coffee was “not classifiable as to its carcinogenicity.” (Italics 

omitted.)

Third, CERT claims that in various ways, the Agency’s 

FSR gave a “false impression” that the IARC had concluded 

coffee does not cause cancer, when in fact the Monograph 

concluded only that there was inadequate evidence for 

coffee’s carcinogenicity. We disagree. The Agency’s FSR

quoted multiple times the IARC’s overall conclusion that 

coffee was “‘not classifiable as to its carcinogenicity to 

humans.’” CERT points to the FSR’s statement of the 

Agency’s key considerations in adopting the regulation, and 

complains that it presents the IARC’s conclusions in a 

misleading manner because of its wording, its use of the 
29

phrase “‘inadequate evidence’” without providing the IARC’s 

definition for the phrase, and its omission of relevant context 

from the IARC Monograph. However, the FSR’s statement 

of key considerations represented the Agency’s conclusions, 

rather than those of the IARC. Indeed, the Agency 

explained that its determination regarding the risk of cancer 

from coffee relied on its own evaluation of the Monograph, 

the underlying research summarized by the Monograph, and 

“studies published subsequent to the IARC review . . . .” 

Finally, CERT challenges the FSR’s assertion that 

“[t]here is a rich mix of cancer-preventative agents in brewed 

coffee.” CERT speculates that this statement “apparently 

refers to antioxidants in coffee” and proceeds to contest the 

notion that antioxidants in coffee prevent cancer. Initially, 

there is no reason to think that the FSR’s reference to 

cancer-preventative agents was limited to antioxidants. In 

its ISR, the Agency listed anti-inflammatory chemicals as 

well as soluble and insoluble fiber, alongside antioxidants, as 

“constituents that exhibit cancer chemopreventive properties

. . . .” The ISR cited numerous articles published in scientific 

journals to support its position that these categories of coffee 

constituents possessed anticarcinogenic properties. The 

Agency’s FSR referenced the ISR’s discussion of cancerpreventative agents and noted its citation to multiple 

scientific authorities in support of its conclusions.13 

13 CERT’s contention that the Agency relied on a single article

is therefore incorrect. 
30

Moreover, we decline CERT’s invitation to wade into a

scientific debate about the effects of antioxidants in coffee or 

the quality of the studies on which the Agency relied in 

adopting the Coffee Regulation. Our task is to assess only 

whether the Agency’s adoption of the regulation was 

arbitrary or capricious. We may not “substitute our

judgment for that of the agency” regarding “the existence 

and weight to be accorded the facts and policy considerations 

that support the regulation.” (Western States Petroleum v. 

State Dept. of Health Services, supra, 99 Cal.App.4th at

1007.) In short, the regulation does not lack scientific 

foundation. 

e. Claims Regarding Acrylamide from 

Additives Are Beyond the Scope of CERT’s 

Actions

CERT’s claims regarding acrylamide formed by the

roasting of plant roots, nuts, and seeds added to coffee --

which are not addressed by the Coffee Regulation --

exceeded the scope of CERT’s actions, as delineated by its 

pre-suit notices. These claims therefore did not preclude 

summary judgment. 

Before bringing a Prop. 65 action in the public 

interest, a private plaintiff must provide a pre-suit notice 

containing sufficient information about the claim to (1) the 

Attorney General and other public prosecutors, to allow 

them to adequately investigate the claim’s basis, and (2) the 

alleged violator, to allow it an opportunity to cure the 
31

violation. (See Health & Saf. Code, § 25249.7, subd. (d); 

Consumer Advocacy Group, Inc. v. Kintetsu Enterprises of 

America (2007) 150 Cal.App.4th 953, 960-961 (Consumer 

Advocacy Group).) This pre-suit notice must describe, 

among other things, “the specific type of consumer product 

. . . with sufficient specificity to inform the recipients of the 

nature of the items allegedly sold in violation of the law and 

to distinguish those products . . . from others sold . . . .” 

(Cal. Code Regs., tit. 27, § 25903, subd. (b)(2)(D).) Failure to 

comply with pre-suit notice requirements is grounds for 

dismissal, and deficiencies cannot be cured after the 

complaint is filed. (See Physicians Committee for 

Responsible Medicine v. KFC Corp. (2014) 224 Cal.App.4th 

166, 181 (Physicians Com.).) 

It is undisputed that CERT’s pre-suit notices failed to 

distinguish regular coffee from a subset of coffee with 

additives from plant roots, nuts, or seeds, and made no 

mention of acrylamide from such additives as the basis of 

any violation. Indeed, CERT alleged that “[e]xposures to 

acrylamide unavoidably occurred via ingestion whenever a 

consumer purchased and thereafter consumed” the alleged 

violators’ “coffee” or “ready-to-drink coffee.” (Italics added.) 

This description provided no notice to respondents or public 

prosecutors that CERT’s claim targeted a subset of products 

containing coffee additives -- to which consumers were not 

exposed “whenever” they purchased respondents’ coffee --

and thus that they should investigate the existence and 
32

carcinogenicity of acrylamide produced from the roasting of 

such additives.

CERT argues: “whether or not acrylamide-containing 

additives were mentioned in CERT’s pre-suit notices of 

violations, . . . acrylamide-containing additives became 

relevant to this case when [respondents] were granted leave 

to amend their answers to assert the Coffee Regulation, 

because that regulation does not exempt from liability 

companies that expose Californians to acrylamide-containing 

additives.” According to CERT, “to obtain summary 

judgment on their new defense, [respondents] were obliged 

to prove that defense applied to their products,” and thus, 

respondents “had to offer evidence that their coffee products 

did not contain any acrylamide-containing flavorings or 

other additives.” 

CERT’s argument ignores its pre-suit notice 

obligations. As noted, to allow alleged violators and public 

prosecutors to investigate claims, pre-suit notices must 

identify the specific type of consumer product, with sufficient 

specificity to distinguish it from others. (See Cal. Code 

Regs., tit. 27, § 25903, subd. (b)(2)(D); Consumer Advocacy 

Group, supra, 150 Cal.App.4th at 960-961.) That 

respondents’ defense precluded liability based on the broad

category CERT identified in its notices does not excuse 

CERT from complying with this requirement. Under 

CERT’s approach, private plaintiffs would be able to cast a 

wide net, identifying vast categories of products in hopes of 

catching something that would support a violation, and 
33

adjusting their claims according to developments in the 

litigation. This approach is contrary to Prop. 65’s intent to 

allow pre-suit investigation of alleged violations. 

Accordingly, we conclude that CERT’s broad and 

undifferentiated identification of “coffee” in its pre-suit 

notices prevents it from now pointing to a subset of coffee 

with additives from plant roots, nuts, and seeds as the basis 

for respondents’ liability.14 (See Consumer Advocacy Group, 

14 Given our conclusion, we need not address CERT’s 

additional contention that the trial court erred by failing to grant 

it a continuance to conduct additional discovery regarding coffee 

additives. In its reply brief, CERT argues for the first time that 

epidemiological studies of acrylamide in food are scientifically 

unreliable, citing an expert declaration filed by the Attorney 

General in a different case in January 2020 (after the Agency 

issued the Coffee Regulation but before the filing of CERT’s 

opening brief). Similarly, for the first time in its answer to the 

Agency’s amicus brief, CERT contends that the Agency adopted 

the Coffee Regulation due to political pressure, and that its 

rationale was simply a post hoc rationalization that cannot 

support the regulation. CERT has forfeited these contentions by 

failing to raise them in its opening brief. (See Tukes v. Richard

(2022) 81 Cal.App.5th 1, fn. 5 [“A contention not appropriately 

raised in the opening brief under a separate argument heading 

may be deemed forfeited.”) 

Because we affirm the grant of summary judgment based 

on the Agency’s regulation and the conclusion that claims 

involving additives were outside the scope of CERT’s actions, we 

need not address respondents’ alternative argument that 

compelling them to provide Prop. 65 warnings would have 

violated the First Amendment. 
34

supra, at 960-961; Physicians Com., supra, 224 Cal.App.4th 

at 181.)

B. Attorney Fees

CERT contends the trial court abused its discretion in 

denying its motion for attorney fees. It argues, among other 

things, that it conferred a significant benefit on the public, 

contrary to the trial court’s determination, because the 

voluntary, temporary Prop. 65 warnings posted by some 

respondents provided an “informational benefit.” As 

explained below, in light of the Agency’s determination that 

coffee poses no significant risk of cancer, we conclude CERT 

has shown no benefit from these temporary warnings.

15

1. Applicable Law

a. Eligibility for Fees under Code of Civil 

Procedure Section 1021.5

“[Code of Civil Procedure] [s]ection 1021.5 codifies the 

‘private attorney general’ doctrine of attorneys fees 

15 We also question whether CERT could be deemed a 

successful party under the catalyst theory after litigating and 

losing its case on the merits. (See Skaff v. Rio Nido Roadhouse

(2020) 55 Cal.App.5th 522, 540 [“we are not convinced that the 

catalyst theory should even apply here,” as “[t]he catalyst theory 

is generally not invoked in cases where the merits have been fully 

litigated to a final judgment”].) However, because we conclude 

that CERT conferred no significant benefit on the public, we need 

not decide the issue. 
35

articulated in Serrano v. Priest (1977) 20 Cal.3d 25 . . . and 

other judicial decisions.” (Flannery v. California Highway 

Patrol (1998) 61 Cal.App.4th 629, 634.) “The statute gives 

the trial court discretion to award fees to a successful party 

if (1) its action has resulted in the enforcement of an 

important public right, (2) the general public or a large class 

of persons has received a significant benefit, (3) the burden 

of private enforcement is disproportionate to the litigant’s 

personal interest, and (4) it is unfair to make a successful 

plaintiff pay the fees out of any recovery.” (Concerned 

Citizens of La Habra v. City of La Habra (2005) 131 

Cal.App.4th 329, 334 (Concerned Citizens).) 

“The award of fees under section 1021.5 is an equitable 

function, and the trial court must realistically and 

pragmatically evaluate the impact of the litigation to 

determine if the statutory requirements have been met. 

[Citation.] This determination is ‘best decided by the trial 

court, and the trial court’s judgment on this issue must not 

be disturbed on appeal “unless the appellate court is 

convinced that it is clearly wrong and constitutes an abuse of 

discretion.” [Citations.]’” (Concerned Citizens, supra, 131 

Cal.App.4th at 334.) 

2. Analysis

CERT has shown no benefit to the public from the 

temporary warnings provided, let alone an abuse of 

discretion in the trial court’s conclusion that no benefit had 

been conferred. CERT contends it conferred an 
36

informational benefit in accord with Prop. 65’s purposes by 

advising consumers that the coffee contained a carcinogen 

and allowing them to make informed decisions regarding 

their coffee consumption. However, the Coffee Regulation, 

promulgated by the agency responsible for implementing 

Prop. 65, establishes that those warnings were unnecessary 

and misleading regarding the risk of cancer from coffee. The

warnings therefore provided no informational benefit to 

consumers. (Cf. Dowhal v. SmithKline Beecham Consumer 

Healthcare (2004) 32 Cal.4th 910, 934 (Dowhal) [“a truthful 

warning of an uncertain or remote danger may mislead the 

consumer into misjudging the dangers stemming from use of 

the product, and consequently making a medically unwise 

decision”]; Nicolle-Wagner v. Deukmejian (1991) 230 

Cal.App.3d 652, 661 (Nicolle-Wagner) [avoiding warnings

regarding substances that pose insignificant risk of cancer 

“will further the statutory purpose [of Prop. 65] in 

safeguarding the effectiveness of warnings which are 

given”].) 

CERT argues that the warnings were required at the 

time they were posted, before the Coffee Regulation was 

issued, and suggests that its suit conferred a benefit by 

enforcing the law at the time. But even assuming that Prop. 

65 warnings for coffee were required before the Agency 

adopted the Coffee Regulation -- a matter we do not decide --

enforcement of the law does not necessarily confer a 

significant benefit on the public. “Of course, the public 

always has a significant interest in seeing that legal 
37

strictures are properly enforced and thus, in a real sense, the 

public always derives a ‘benefit’ when illegal private or 

public conduct is rectified. Both the statutory language 

(‘significant benefit’) and prior case law, however, indicate 

that the Legislature did not intend to authorize an award of 

attorney fees in every case involving a statutory violation. 

[Rather,] the Legislature contemplated that in adjudicating 

a motion for attorney fees under section 1021.5, a trial court 

would determine the significance of the benefit, as well as 

the size of the class receiving benefit, from a realistic 

assessment, in light of all the pertinent circumstances, of the 

gains which have resulted in a particular case.” (Woodland 

Hills Residents Assn., Inc. v. City Council (1979) 23 Cal.3d 

917, 939-940; accord, Villarreal v. Gordon (2019) 44 

Cal.App.5th 233, 240.) Given that the warnings in this case 

disserved Prop. 65’s purpose to inform the public of 

significant cancer risks (see Dowhal, supra, 32 Cal.4th at 

934; Nicolle-Wagner, supra, 230 Cal.App.3d at 661), they 

provided no significant benefit for purposes of the attorney 

fees statute. Accordingly, the trial court properly denied 

CERT’s motion for attorney fees.

C. Section 998 Costs

CERT contends the section 998 respondents’

compromise offers were invalid because: (1) settlement offers 

in Prop. 65 cases can never be valid under section 998, as 

they require court approval; and (2) the relevant 

respondents’ offers included overly broad releases. 
38

Assuming, without deciding, that section 998 applies to 

Prop. 65 claims, we agree that the offers here were invalid 

because they included overly broad releases. Accordingly, 

we reverse the trial court’s denial of CERT’s motion to tax 

costs. 

1. Background

During the litigation, the section 998 respondents

served CERT with statutory offers to compromise. Under 

the terms of the offers, these respondents were to pay CERT 

substantial amounts and post Prop. 65 warnings, with 

certain conditions. In return, CERT was to provide two 

kinds of releases. The first was a public release, requiring 

CERT, as a plaintiff suing “in the public interest,” to release

the offerors from “all claims . . . as to any alleged violation of 

Proposition 65 that is or that could have been asserted in the 

[pre-suit] Notice or [complaint] based on the facts alleged 

therein.” The second release applied to CERT in “its 

individual capacity,” and required it to provide “a general 

release” of “all [c]laims of CERT . . . of any nature, character 

or kind, known or unknown, suspected or unsuspected, 

arising under Proposition 65 or for an alleged failure to 

provide warnings for exposures to acrylamide.” CERT 

rejected these compromise offers. 

After entry of judgment, the section 998 respondents 

filed memoranda of costs seeking to recover almost $700,000 

in post-offer costs. CERT moved to tax costs, challenging the 

validity of the statutory compromise offers and arguing, 
39

inter alia, that the releases included in the offers were overly 

broad because they applied to claims outside the scope of the 

litigation “such that there would be no way to determine 

whether a judgment in the pending action is ‘more favorable’ 

than the value of those claims.” The trial court denied 

CERT’s motion and awarded the requested post-offer costs.16

2. Applicable Law

“On a motion to strike or tax costs, ‘[t]he burden is on 

the offering party to demonstrate that the offer is valid 

under section 998.’ [Citations.] ‘The offer must be strictly 

construed in favor of the party sought to be bound by it.’ 

[Citations.] ‘“We independently review whether a section 

998 settlement offer was valid. In our review, we interpret 

any ambiguity in the offer against its proponent.”’” 

(Khosravan v. Chevron Corp. (2021) 66 Cal.App.5th 288, 

294-295.)

Under section 998, “any party may serve an offer in

writing upon any other party to the action to allow judgment 

to be taken or an award to be entered in accordance with the 

terms and conditions stated at that time.” (§ 998, subd. (b).) 

“If an offer made by a defendant is not accepted and the 

plaintiff fails to obtain a more favorable judgment,” the 

plaintiff must “pay the defendant’s costs from the time of the 

offer,” and the court has discretion to “require the plaintiff to 

16 On appeal, CERT has not provided a reporter’s transcript 

of the hearing on its motion to tax.
40

pay a reasonable sum to cover postoffer costs of the services 

of expert witnesses . . . .” (§ 998, subd. (c)(1).)

Because section 998 requires a determination whether 

the offer’s terms were more favorable than the judgment, the 

offer must not include a release of claims beyond those 

involved in the litigation. (Ignacio v. Caracciolo (2016) 2 

Cal.App.5th 81, 86-87 (Ignacio); see id. at 87 [“Requiring 

resolution of potential unfiled claims not encompassed by the 

pending action renders the offer incapable of valuation”].) 

Thus, in Ignacio, the court held a section 998 offer invalid 

because it went “well beyond the scope of the litigation,” 

requiring the release of “‘any and all claims’ the releasees 

may have against the releasors ‘whether now known or 

unknown, suspected or unsuspected, that have existed or 

may have existed or which do exist, or which hereinafter 

can, shall or may exist . . . .’” (Ignacio, supra, at 89.) The 

Ignacio court noted that the plaintiff-offeree had identified 

before the trial court a claim that was not involved in the 

pending litigation but would have been encompassed by the 

release. (Id. at 90.) Because the proposed release of 

extraneous claims made the offer incapable of valuation, the 

court concluded the offer was invalid for purposes of section 

998. (Ignacio, supra, at 87, 89-90.)

Similarly, in Chen v. Interinsurance Exchange of the 

Automobile Club (2008) 164 Cal.App.4th 117 (Chen), the 

court deemed an offer invalid because it required a “‘general 

release of all claims.’” (Id. at 122.) The court reasoned that 

the required release was at least ambiguous as to whether it 
41

applied to a pending insurance claim outside the scope of the 

litigation, rendering the offer incapable of valuation. (Id. at 

122-123.) 

3. Analysis

The individual-capacity general releases included in 

the section 998 respondents’ compromise offers were overly 

broad, as they encompassed claims beyond the scope of this 

litigation. As noted, those releases would have applied to 

“all Claims . . . known or unknown . . . arising under 

Proposition 65 or for an alleged failure to provide warnings 

for exposures to acrylamide.” While the release would have 

applied only to Prop. 65 claims, the section 998 respondents

point to nothing in their language that would have limited 

them to the claims involved in CERT’s actions, and we see no 

such limitation. Because the releases extended beyond the 

scope of the litigation, they invalidated the compromise 

offers. (See Ignacio, supra, 2 Cal.App.5th at 86-87; Chen, 

supra, 164 Cal.App.4th at 122.) 

The section 998 respondents argue the general releases 

did not invalidate their statutory compromise offers for four 

reasons. First, they note that during the litigation, CERT 

approved other defendants’ section 998 offers containing the 

same releases. Citing no authority, the section 998 

respondents argue, “The fact that such releases were 

standard for CERT . . . supports the conclusion that CERT 

was not prejudiced by such provisions, and that they were an 

appropriate part of a proposed consent judgment under 
42

Proposition 65.” However, the relevant question under 

section 998 is whether the offers allowed for a determination 

that the judgment was more favorable, not whether the 

offers “prejudiced” the offeree. Regardless of whether CERT 

accepted other flawed section 998 offers, these respondents’ 

offers required the court to engage in an impracticable 

valuation of potential claims outside the scope of the 

litigation, and were therefore invalid. (See Ignacio, supra, 2 

Cal.App.5th at 87; Chen, supra, 164 Cal.App.4th at 122-123)

Second, the section 998 respondents state that under 

Goodstein v. Bank of San Pedro (1994) 27 Cal.App.4th 899

(Goodstein), a valid statutory compromise offer may include 

a general release. In Goodstein, however, the court 

concluded that a “general release” did not invalidate a 

statutory compromise offer after construing it to apply only 

to the litigation before it. (Goodstein at 907; accord, Ignacio, 

supra, 2 Cal.App.5th at 89 [“The rule to be taken from 

Goodstein is not that a ‘general release’ does not invalidate a 

section 998 offer; the rule is that a release of unknown 

claims arising only from the claim underlying the litigation 

itself does not invalidate the offer”].) We cannot similarly 

construe the releases here, which applied to “all [c]laims . . . 

under Prop. 65.” 

Third, the section 998 respondents contend that to 

establish that a release was overbroad, the offeree must 

identify a potential claim that would have been encompassed 

by the release but is beyond the scope of the litigation. They 

contend CERT failed to do so, both in the trial court and on 
43

appeal. Assuming arguendo that such a requirement exists, 

no special effort is needed to identify a qualifying potential 

claim in this case. As discussed above, and as these 

respondents themselves argue in the context of summary 

judgment, CERT’s asserted claim involving exposure to 

acrylamide formed by additives in coffee was beyond the 

scope of its actions. Yet under the terms of the proposed 

general releases, this claim -- undoubtedly a claim under 

Prop. 65 -- would have been relinquished.17

Finally, the section 998 respondents claim their offers, 

which included Prop. 65 warnings and substantial payments 

to CERT, “were clearly more favorable than the judgment of 

dismissal that CERT achieved.” But this assertion ignores 

claims beyond the scope of CERT’s actions that were to be 

released under the offers. The asserted claim involving 

17 The section 998 respondents suggest that CERT forfeited 

its arguments by failing to expressly identify a released claim 

beyond the scope of the litigation. To the extent this asserted 

failure triggers the forfeiture rule, we exercise our discretion to 

consider CERT’s contentions and the claim we have identified

because this matter is subject to de novo review and the relevant 

claim was extensively discussed both below and on appeal in the 

context of summary judgment, providing the section 998 

respondents ample opportunity to address it. (See Husman v. 

Toyota Motor Credit Corp. (2017) 12 Cal.App.5th 1168, 1187 

[noting appellate courts’ discretion to consider matter that was 

not argued below but involves only legal question based on 

undisputed facts]; Jameson v. Desta (2009) 179 Cal.App.4th 672, 

674, fn. 1 [exercising discretion to consider claim not raised in 

opening brief because respondent had not been deprived of 

opportunity to address issue].) 
44

coffee additives was unaffected by the Coffee Regulation, and 

if found meritorious, could have yielded a significant reward 

for CERT, which would have been entitled to 25 percent of 

all penalties collected.

18 Given that the proposed releases in 

the section 998 offers covered this and other potential 

claims, the trial court could not have determined that the 

offers were more favorable than the judgment. Thus, the 

offers were invalid for purposes of section 998, and the trial 

court erred in denying CERT’s motion to tax costs. 

18 As noted, a person who violates Prop. 65 is subject to civil 

penalties of up to $2,500 per day for each violation. (Health & 

Saf. Code, § 25249.7, subd. (b)(1).)
45

DISPOSITION

The trial court’s orders granting summary judgment 

and denying attorney fees are affirmed. The order denying 

CERT’s motion to tax costs is reversed. The parties shall 

bear their own costs on appeal.

CERTIFIED FOR PUBLICATION

 MANELLA, P. J.

We concur:

WILLHITE, J.

COLLINS, J.