1

Filed 2/27/23 Mateel Environmental Justice Foundation v. Fiskars Living US CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or 

ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

MATEEL ENVIRONMENTAL 

JUSTICE FOUNDATION,

Plaintiff and Appellant,

v.

FISKARS LIVING US, LLC, et al.,

Defendants and Respondents.

 A164638

 (City & County of San Francisco

 Super. Ct. No. CGC-21-592209)

This is an appeal by plaintiff Mateel Environmental Justice Foundation 

(Mateel) from a judgment of dismissal after the trial court sustained the 

demurrer of defendants Fiskars Living US, LLC, and Fiskars Brands, Inc. 

(collectively, Fiskars), in a matter brought under the Safe Drinking Water 

and Toxic Enforcement Act of 1986 (Health & Saf. Code § 25249.5 et seq.)

(Proposition 65).

1 By its complaint, Mateel alleged that Fiskars failed to 

adequately warn the users of its lead crystal drinkware of the dangers of

toxic lead exposure. Mateel sought both injunctive relief and civil penalties.

Sustaining the demurrer without leave to amend, the trial court ruled 

that “the proper place for any modification of Proposition 65 warnings 

1 Unless otherwise stated, all statutory citations herein are to the 

Health and Safety Code.
2

regarding lead crystal” is the trial court that presided over a different case 

(Mangini v. Action Industries, Inc. (Super. Ct. S.F. City and County, 1993, 

Nos. CGC-90-932724, CGC-91-931884, CGC-91-938173 (Mangini)). Mangini

was decided by a consent judgment first entered in 1993 and then reentered 

as modified in 2001. We agree with Mateel that, accepting as true the facts

alleged in the operative complaint and only those additional facts of which 

the trial court could properly take judicial notice, there are no grounds upon 

which to sustain Fiskars’s demurrer without leave to amend. Accordingly, we 

reverse the judgment of dismissal and return this matter for further 

proceedings consistent with this opinion.

FACTUAL AND PROCEDURAL BACKGROUND

Mateel is a California-based nonprofit organization dedicated to 

environmental protection and education, promotion of human health, and 

consumer rights. Fiskars consists of businesses that market and sell leaded 

crystal drinkware2 and other products to California retailers, including 

The TJX Companies, Inc., which operate retail businesses under the names 

T.J. Maxx, Marshalls and HomeGoods.

On June 22, 2021, Mateel filed the operative first amended complaint 

(FAC) against Fiskars. The FAC alleged that, at least since February 18, 

2018, Fiskars knowingly and intentionally exposed California residents to 

lead, a toxic heavy metal known to cause cancer, birth defects and other 

reproductive harm, by marketing leaded crystal products, including 

drinkware, without providing clear and reasonable warnings in compliance 

with Proposition 65. Mateel sought civil penalties of $2,500 per day for each 

individual exposed to lead since February 18, 2018, as a result of using 

2 Fiskars’s leaded crystal drinkware includes “goblets, decanters, wine 

glasses, champaign flutes, and high ball glasses . . . .” (Sic.)
3

Fiskars’s products without proper warning. Mateel also sought injunctive 

relief “to compel [Fiskars] to bring [its] business practices into compliance 

with section 25249.5 et seq. by providing to retailers to whom Fiskars sells 

leaded crystal, the information required to be provided to retailers in the 

June 2, 1993 consent judgment entered in the case, Mangini v. Action 

Industries, Inc., et al., San Francisco Superior Court Case consolidated case 

numbers 952724, 931884 and 938173, and by providing to those retail 

customers to whom Fiskars directly sells leaded crystal, a clear and 

reasonable warning to each individual who has been and who in the future 

may be exposed to lead by drinking beverages from leaded crystal that 

defendants have marketed in California.”

On September 30, 2021, Fiskars demurred to the FAC. In support of 

the demurrer, Fiskars filed a request for judicial notice of various documents, 

including the modified consent judgment entered on August 23, 2001, in 

Mangini (Modified Consent Judgment). Fiskars argued that the FAC failed 

to allege facts sufficient to state a cause of action because: (1) the issue 

preclusion doctrine3 barred Mateel from relitigating what constitutes legally 

compliant Proposition 65 warnings for lead crystal, as this issue was 

conclusively decided in Mangini, which was brought by a plaintiff acting as a 

private attorney general, just as Mateel in this case; (2) the doctrine of 

3 Fiskars used the term “collateral estoppel” in making this argument 

below and continues to use this term on appeal. Courts use the terms 

“collateral estoppel” and “issue preclusion” interchangeably. (See, e.g., 

Hernandez v. City of Pomona (2009) 46 Cal.4th 501, 505; Pike v. Hester (9th 

Cir. 2018) 891 F.3d 1131, 1138.) In 2018, the California Supreme Court 

indicated it will “use ‘issue preclusion’ in place of ‘direct or collateral 

estoppel.’ ” (Samara v. Matar (2018) 5 Cal.5th 322, 326.) Accordingly, we 

strive to do the same, while acknowledging that the parties, the court and the 

applicable case law sometimes refer to “collateral estoppel.”
4

exclusive concurrent jurisdiction required this case to be stayed or dismissed

because the Mangini court has exclusive and continuing jurisdiction over the 

subject matter of what constitutes legally compliant Proposition 65 warnings 

for lead crystal; and (3) Mateel failed to plead sufficient facts to avoid the 

dispositive facts that compliance with the warning regime set forth in the 

Modified Consent Judgment constitutes compliance with Proposition 65 and 

that authority to enforce this regime is exclusively reserved to the Attorney 

General.

On October 29, 2021, Mateel filed an opposition to the demurrer and 

the request for judicial notice. Mateel argued there were no facts before the 

court that could establish for purposes of the claim or issue preclusion 

doctrines that: (1) Fiskars was a party to, or in privity with a party to, the 

Modified Consent Judgment; or that (2) the issues raised in this action were

identical to the issues actually litigated and decided in Mangini. Mateel also 

argued the exclusive concurrent proceedings doctrine was inapplicable 

because Mangini was not a “concurrent proceeding[]” because the case ended 

20 years ago and involved different transactions.

On January 26, 2022, following a contested hearing, the trial court 

issued an order sustaining Fiskars’s demurrer without leave to amend. In 

doing so, the court declined to reach the arguments raised by Fiskars and

Mateel or to rule on Fiskars’s requests for judicial notice. Instead, relying on 

a court’s “ ‘ “ ‘inherent powers’ ” ’ ” to control the litigation before it 

(Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967), the trial court 

ruled that the “Mangini case is the proper place for any modification of 

Proposition 65 warnings regarding lead crystal.” Judgment of dismissal was 

thus entered, prompting this appeal.
5

DISCUSSION

“When any ground for objection to a complaint, cross-complaint, or 

answer appears on the face thereof, or from any matter of which the court is 

required to or may take judicial notice, the objection on that ground may be 

taken by a demurrer to the pleading.” (Code Civ. Proc., § 430.30, subd. (a).)

Here, the trial court sustained Fiskars’s demurrer to the FAC based on 

its inherent authority to control the litigation before it. Specifically, the trial 

court relied on this inherent authority in deciding Mateel’s claims must be 

brought before the Mangini court, reasoning that any order it might make in 

this case would “inevitably” conflict with the Modified Consent Judgment

reached in Mangini.

On appeal, Mateel contends the trial court’s ruling was an abuse of its

statutorily prescribed authority to rule on demurrer. Mateel also challenges 

the alternative arguments raised by Fiskars that its causes of action are 

barred by the legal doctrines of issue preclusion and exclusive concurrent 

jurisdiction and that allowing its lawsuit to go forward would improperly 

interfere with the Attorney General’s exclusive authority to prosecute 

violations of the Modified Consent Judgment. Mateel reasons that this case

involves different parties, different claims, and different transactions from 

those involved in Mangini, and even assuming for the sake of argument some 

overlap exists between them, Mangini has long ended and the Mangini court 

has long lost jurisdiction to adjudicate the Proposition 65 violations alleged 

here.

I. Standard of Review.

“We independently review the superior court’s ruling on a demurrer

and determine de novo whether the complaint alleges facts sufficient to state

a cause of action or discloses a complete defense.” (Ivanoff v. Bank of
6

America, N.A. (2017) 9 Cal.App.5th 719, 725.) “We assume the truth of

properly pleaded factual allegations, facts that reasonably can be inferred

from those expressly pleaded, and matters that are judicially noticeable.”

(Genis v. Schainbaum (2021) 66 Cal.App.5th 1007, 1015.)

Where, as here, “the demurrer is based on the pleading not stating

‘ “facts sufficient to constitute a cause of action, the rule is, that if upon a

consideration of all the facts stated it appears that the plaintiff is entitled to

any relief at the hands of the court against the defendants, the complaint will

be held good, although the facts may not be clearly stated, or may be

intermingled with a statement of other facts irrelevant to the cause of action

shown, or although the plaintiff may demand relief to which he is not entitled

under the facts alleged.” [Citation.] In other words, “plaintiff need only

plead facts showing that he may be entitled to some relief [citation].”

[Citation.] Furthermore, we are not concerned with plaintiff’s possible

inability or difficulty in proving the allegations of the complaint. [Citation.]’

[Citation.]” (New Livable California v. Association of Bay Area Governments

(2020) 59 Cal.App.5th 709, 714 (New Livable California).)

II. Proposition 65.

Proposition 65, passed into law in 1986, added sections 25249.5–

25249.13 to the Health and Safety Code. Under section 25249.6, those doing 

business in California are prohibited from intentionally exposing any 

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

toxicity unless a clear and reasonable warning is given. Lead is one of the 

chemicals that triggers a warning obligation under section 25249.6. (People 

ex rel. Lungren v. Superior Court (1996) 14 Cal.4th 294, 299 & fn. 3.)
7

III. The Trial Court’s Ruling on Demurrer.

The trial court relied on its inherent judicial authority to control the 

litigation assigned to it in ruling, “The Mangini case is the proper place for 

any modification of Proposition 65 warnings regarding lead crystal.” To 

support its ruling, the court made three findings. First, “[t]he injunctive 

relief provided by the [Modified Consent Judgment] is ‘continuing’ and 

‘modification’ of that judgment in the future is authorized. [Citations.]” 

Second, acknowledging Fiskars was not a party to Mangini, the court read 

the Modified Consent Judgment to allow modification to “be sought not only 

by the Mangini plaintiff and that case’s defendants, but by ‘any party as 

provided by law for good cause shown.’ [Citation.]” Lastly, the court found 

that, by the present lawsuit, Mateel sought new Proposition 65 warnings for 

lead crystal against Fiskars that “would inevitably lead to conflicts between 

[the Modified Consent Judgment] and any order entered in the new case.”

In light of the trial court’s reliance upon the Modified Consent 

Judgment, we begin our review with Mangini.

A. Mangini and the Modified Consent Judgment.

In 1991, plaintiff Janet C. Mangini filed a civil complaint for damages 

and injunctive relief in San Francisco Superior Court case No. 

CGC-90-932724 against defendants Baccarat, Inc.; Lalique North 

America, Inc., and Lalique S.A.; Galway Irish Crystal Ltd.; Martel; Waterford 

Crystal Ltd. and Waterford Wedgwood Retail, Inc.; Orrefors; Macy’s 

California, Inc.; Shreve & Co.; Gump’s; and Does 1–200. Mangini previously 

filed, and then amended, civil complaints in San Francisco Superior Court 

case Nos. CGC-91-931884 and CGC-91-938173 against some or all of the 

above named defendants as well as defendants Hoya Crystal, Inc.; Kosta 

Boda; and Saks & Company. Through her complaints, Mangini alleged, 
8

inter alia, the defendants violated Proposition 65 by knowingly exposing

individuals to lead through the manufacture, distribution and sale of “crystal 

products containing lead used with food or beverages (hereinafter, ‘Leaded 

Crystal Products’), including, among others, certain decanters, glasses, and 

other serveware, without first providing clear and reasonable warnings to 

persons who could potentially be exposed to lead through the use of such 

products.”

In 1993, after Mangini’s three lawsuits were consolidated by court 

order, she and several named defendants settled the matter by a consent 

judgment. The original consent judgment was modified on August 23, 2001,

to address certain later developments, including the entry of new companies 

into the lead crystal product business. The settling defendants (hereinafter, 

Settling Defendants) numbered 115 and are identified in exhibit 1 to the 

Modified Consent Judgment.

With this background, we return to the issues at hand.

B. Legal Analysis.

“It is ‘black-letter law’ a demurrer tests the pleading alone. (5 Witkin,

Cal. Procedure (3d ed. 1985) Pleading, § 895, p. 334.) ‘When any ground for

objection to a complaint or cross-complaint does not appear on the face of the

pleading, the objection may be taken by answer.’ (Code Civ. Proc.,

§ 430.30(b).) ‘[D]efendants cannot set forth allegations of fact in their

demurrers which, if true, would defeat plaintiff’s complaint.’ ” (Gould v.

Maryland Sound Industries, Inc. (1995) 31 Cal.App.4th 1137, 1144 (Gould).)

Here, the trial court accepted as true allegations of fact regarding the 

Modified Consent Judgment that were alleged by Fiskars on demurrer. The 

trial court then relied on those unproven facts to dismiss the FAC without 

leave to amend. This was error several times over.
9

As stated ante, Fiskars requested judicial notice of the Modified 

Consent Judgment in demurring to the FAC. The trial court never ruled on 

Fiskars’s request but nonetheless made three threshold factual findings in

deciding the “Mangini case is the proper place” to litigate Mateel’s claims 

against Fiskars: (1) the Mangini court had “ ‘continuing’ ” jurisdiction to 

order injunctive relief and/or to modify the Modified Consent Judgment; 

(2) even though Fiskars was not a party to Mangini, Mateel could seek 

modification of the Modified Consent Judgment in order to pursue claims 

against Fiskars; and (3) awarding Mateel relief under the FAC would 

“inevitably lead to conflicts” with the Modified Consent Judgment. This was 

wrong. The Modified Consent Judgment was not before the court on 

demurrer and should not have been considered. (Genis v. Schainbaum,

supra, 66 Cal.App.5th at p. 1015.)

Fiskars nonetheless adopts the trial court’s erroneous approach on 

appeal. Countering Mateel’s argument that Mangini has long ended, Fiskars 

claims “many terms [of the Modified Consent Judgment] demonstrate 

prospective operation,” including paragraphs 4, 30 and 31, “which extend the 

obligations and benefits of the judgment automatically to successors and 

assigns . . . .” Fiskars then concludes the Mangini court is the proper forum 

for resolving Mateel’s claims because “Mateel is claiming the same public 

interest enforcement authority as, and is in privity with, Ms. Mangini, and 

Mateel challenges warnings related to the same Leaded Crystal Products.” 

The record on demurrer provides no support for these claims.

To be sure, although the Modified Consent Judgment was not attached 

to the FAC or judicially noticed by the court, it is referenced in the FAC. 

Paragraph 3 of the FAC states: “Plaintiff seeks injunctive relief pursuant to 

. . . Section 25249.7 to compel defendants to bring their business practices 
10

into compliance with section 25249.5 et seq. by providing to retailers to whom 

Fiskars sells leaded crystal, the information required to be provided to 

retailers in the June 2, 1993 consent judgment entered in the case, Mangini 

v. Action Industries, Inc., et al., San Francisco Superior Court Case 

consolidated case numbers 952724, 931884 and 938173, and by providing to 

those retail customers to whom Fiskars directly sells leaded crystal, a clear 

and reasonable warning to each individual who has been and who in the

future may be exposed to lead by drinking beverages from leaded crystal that 

defendants have marketed in California.” This language in the FAC makes 

clear that contrary to the trial court’s finding, Mateel, through this lawsuit, 

was not seeking to modify or undermine the warning regime set forth in the 

Modified Consent Judgment. Rather, Mateel asked the court to impose as a 

remedy, in the event Fiskars was found in violation of Proposition 65, 

warning requirements consistent with those required under the Modified 

Consent Judgment.

In any event, the FAC’s single reference to Mangini in laying out its

request for injunctive relief did not open the door for the trial court to resolve 

on demurrer disputed matters regarding the meaning and scope of the 

Modified Consent Judgment. To the contrary, that resolution depends on

“questions of fact which cannot be resolved at the pleading stage of the case.” 

(Gould, supra, 31 Cal.App.4th at p. 1146 [improper for the court, in ruling on 

a demurrer, to conclude as a matter of law that “a piece of paper” is a 

contract between the parties]; accord, StorMedia Inc. v. Superior Court (1999) 

20 Cal.4th 449, 456, fn. 9 (StorMedia).) We know of no authority that would 

allow a trial court to circumvent this legal principle by relying on its inherent 

authority to control the litigation before it. (See People v. Henson (2018) 28 

Cal.App.5th 490, 513 [“A court is authorized . . . only to act within the bounds 
11

of the law. It does not have inherent authority to prohibit what the law

permits, based on a misunderstanding of the law or its own view as to what 

the law should be”].)

We briefly identify, in a footnote post, some potentially relevant terms 

of the Modified Consent Judgment, which are discussed in the parties’ briefs.

4 

4 Under section II, paragraph 12, of the Modified Consent Judgment, 

the Settling Defendants agreed to provide “[c]lear and reasonable warning 

that use of Leaded Crystal Products exposes persons to lead” in one of three 

approved forms as provided in paragraphs 13, 15, and 17. Any alternative 

warning to the three approved forms in these paragraphs was prohibited 

without prior written agreement from the Office of the Attorney General, 

which was granted exclusive authority to enforce the Modified Consent 

Judgment.

Paragraph 29 states that the Modified Consent Judgment is deemed “a 

full and final judgment and settlement applying to all Settling Defendants 

and all Subsidiary Settling Parties (as defined by Paragraph 31 below) for all 

claims, violations, actions, damages, costs, penalties or causes of action under 

Proposition 65 . . . and any other statutes and causes of action . . . which may 

have occurred up to the date on which warnings are required to be issued 

pursuant to Section II of this Consent Judgment, including all violations 

alleged in the Consolidated Complaints.” Per paragraph 31, Subsidiary 

Settling Parties are “the manufacturers, distributors, wholesalers, retailers, 

mail order and Internet sellers, restaurant suppliers, restaurants, wineries 

and others who may be deemed responsible for exposures of persons to lead in 

Leaded Crystal Products manufactured or marketed by or acquired from a 

Settling Defendant.” However, “[t]he releases from liability provided for by 

this Consent Judgment to such Subsidiary Settling Parties shall extend only 

to liability associated with exposures to Leaded Crystal Products 

manufactured or marketed by or acquired from one or more Settling 

Defendants and shall not extend to any liability associated with exposures to 

the products of any other party or entity.”

Finally, in defining the scope of the release of liability, the Modified 

Consent Judgment distinguishes past and future claims. As to the former, 

paragraph 30 states: “Upon entry of this Consent Judgment, the Settling 

Defendants and Subsidiary Settling Parties . . . and the directors, officers, 

employees, agents, parents, affiliates, divisions and subsidiaries, and the 

successors or assigns of any of them, are hereby released from all claims, 
12

However, this is not so that this court, sitting on appeal from a judgment of 

dismissal, can attempt to make sense of those terms. It is to demonstrate the 

numerous ambiguities in the Modified Consent Judgment, including

ambiguities regarding the persons that qualify as Settling Defendants or

Subsidiary Settling Parties (see Modified Consent Judgment, at pp. 1, 14–15, 

pars. 3, 31), and the circumstances under which the qualifying persons may 

be released from liability for claims arising either before or after the original 

date of the judgment (see Modified Consent Judgment, at p. 14, par. 30).

These ambiguities cannot be resolved without allowing the parties an 

opportunity to present extrinsic evidence regarding the Modified Consent 

Judgment. (New Livable California, supra, 59 Cal.App.5th at p. 716 [“ ‘a 

court cannot . . . convert a demurrer into an incomplete evidentiary hearing 

in which the demurring party can present documentary evidence and the 

opposing party is bound by what that evidence appears to show’ ”]; Fremont 

Indemnity Co. v. Fremont General Corp. (2007) 148 Cal.App.4th 97, 114 [“A 

court cannot determine based on only the four corners of a document, without 

violations, actions, damages, costs, penalties, or causes of action set forth in 

Paragraph 29 [see ante] which may hereafter be asserted by Plaintiff or any 

other . . . entity whatsoever claiming by, through or in place of the Plaintiff.” 

As to the latter, paragraph 30 states: “As to any claims, violations, actions, 

damages, costs, penalties, or causes of action which may arise or have arisen 

after the original date of entry of this Consent Judgment, compliance with 

those terms [of the warning program] of this Consent Judgment applicable to 

a Settling Defendant or Subsidiary Settling Party shall be deemed to 

constitute that entity’s full and complete compliance with Proposition 65 . . . ,

provided, however, that no Settling Defendant or Subsidiary Settling Party 

(or the directors, officers, employees, agents, parents, affiliates, divisions, and 

subsidiaries, and the successors or assigns of any of them) shall be deemed to 

be in or have been in such compliance and released from future claims if it or 

an entity acting on its behalf had not, as of the date of the alleged violation, 

implemented the requirements applicable to them . . . .”
13

provisionally considering any extrinsic evidence offered by the parties, that 

the meaning of the document is clear and unambiguous”].)

Thus, because the proper interpretation of a written agreement raises

disputable issues (Gould, supra, 31 Cal.App.4th at p. 1146; StorMedia, supra,

20 Cal.4th at p. 456, fn. 9), the sufficiency of the allegations in the FAC must 

be tested without drawing any conclusions as to the meaning or scope of the 

Modified Consent Judgment. (Gould, supra, 31 Cal.App.4th at p. 1146; 

Blank v. Kirwan (1985) 39 Cal.3d 311, 318 [“ ‘We treat the demurrer as 

admitting all material facts properly pleaded, but not contentions, deductions 

or conclusions of fact or law’ ”].) The trial court was wrong to rely on its 

inherent authority to control litigation to resolve factual issues on demurrer 

even assuming for the sake of argument that the Modified Consent Judgment 

was a proper subject of judicial notice. (Gould, supra, at p. 1146; see People 

v. Jennings (2010) 50 Cal.4th 616, 684, fn. 34 [“Even assuming for the 

purposes of argument that we could take judicial notice of the existence, 

content and authenticity of these . . . materials, doing so would not establish 

the truth of critical factual matters asserted therein”].)

IV. No alternative grounds exist for upholding the trial court’s

dismissal of the FAC.

We briefly address Fiskars’s remaining arguments for dismissing the 

FAC on demurrer—to wit, that the legal doctrines of issue preclusion and 

exclusive concurrent jurisdiction provide a complete defense to Mateel’s 

causes of action. (Tucker v. Pacific Bell Mobile Services (2012) 208 

Cal.App.4th 201, 210–211 [“If a demurrer is sustained, we exercise our 

independent judgment on whether a cause of action has been stated as a 

matter of law, regardless of reasons stated by the trial court”].) Fiskars is

mistaken for the same reason as the trial court: These arguments hinge on 

resolution of factual issues not suitable to a hearing on demurrer.
14

A. Issue Preclusion.

“Issue preclusion prohibits the relitigation of issues argued and decided

in a previous case, even if the second suit raises different causes of action. 

[Citation.] Under issue preclusion, the prior judgment conclusively resolves

an issue actually litigated and determined in the first action.” (DKN

Holdings LLC v. Faerber (2015) 61 Cal.4th 813, 824 (DKN Holdings).) Issue

preclusion applies if there was (1) a final adjudication (2) of an identical issue

(3) that was actually litigated, (4) necessarily decided, and (5) asserted

against one who was a party in the first suit or one in privity with that party. 

(Id. at p. 825; accord, Hernandez v. City of Pomona, supra, 46 Cal.4th at p.

511, fn. 3 [identifying same factors for applying collateral estoppel].) In order 

for this doctrine to apply, each of these elements must be established. (Ibid.) 

The party asserting issue preclusion has the burden of establishing the 

requirements for applying the doctrine. (Lucido v. Superior Court (1990) 51 

Cal.3d 335, 341.)

Fiskars claims this doctrine is a complete defense to the FAC. Mateel 

disagrees, arguing there were no facts before the court on demurrer 

establishing, one, that the issues raised in the FAC relating to the adequacy 

of Fiskars’s Proposition 65 warnings were identical to the issues actually 

decided in Mangini or, two, that Fiskars was a Settling Defendant or in 

privity with a Settling Defendant under the Modified Consent Judgment. 

Without these facts, Mateel continues, Fiskars could not meet its burden of 

proving the threshold requirements for application of this doctrine. We 

agree.

On its face, the FAC reveals nothing that would establish that Mateel’s 

claims are identical to those litigated and actually decided in Mangini. 

Contrary to Fiskars’s suggestion, the FAC does not allege Fiskars violated 
15

Proposition 65 by providing a warning that would be legal under the Modified 

Consent Judgment. Rather, the FAC alleges Fiskars provided a warning 

different from or inferior to the Mangini warnings and thereby failed to 

provide clear and reasonable warnings to individuals exposed to lead from 

Fiskars’s products. (See FAC, at p. 2, par. 3 [“seek[ing] injunctive relief . . . to 

compel defendants to bring their business practices into compliance with 

section 25249.5 et seq. by providing to retailers to whom Fiskars sells leaded 

crystal, the information required to be provided to retailers in the June 2, 

1993 consent judgment entered in . . . Mangini”].) Thus, nothing on the face 

of the FAC proves Mateel is attempting to relitigate the adequacy of any

warning accepted as Proposition 65-compliant in Mangini. (See DKN

Holdings, supra, 61 Cal.4th at p. 824.)

Nor was there evidence before the court on demurrer establishing that

Mateel was asserting any claim against an entity that was a Mangini party

or in privity with a Mangini party. (Hernandez v. City of Pomona, supra, 46

Cal.4th at p. 511.) Fiskars repeatedly insists it qualifies as a Settling 

Defendant or Subsidiary Settling Party. Yet, the 115 Settling Defendants are 

listed in exhibit 1 to the Modified Consent Judgment. None of the names of 

the Fiskars defendants in this case appears on exhibit 1. Moreover, while 

Fiskars insists that Fiskars “directly or indirectly” owns or is affiliated with 

one or more Settling Defendants, there is, again, no evidence of this in the 

record on demurrer. As Fiskars acknowledges in a footnote to the 

respondents’ brief, the court did not rule on its request for judicial notice of 

various documents and Web sites purporting to show Fiskars’s affiliation

with certain of the Settling Defendants identified on exhibit 1, such as

Waterford Crystal Limited and Waterford Wedgwood, PLC. Because these 

records were not judicially noticed below, we decline to consider them. 
16

(Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [grounds for 

demurrer must appear on the face of the complaint or be judicially 

noticeable].) Moreover, even if these records had been judicially noticed, we 

would consider only the fact that they exist, not that any statement they 

contain regarding Fiskars’s business affiliations is true. (See Mangini v. 

R. J. Reynolds Tobacco (1994) 7 Cal.4th 1057, 1064 [denying request for 

judicial notice because “the existence of the newspaper article is irrelevant, 

and the truth of its contents is not judicially noticeable”], disapproved on 

another ground in In re Tobacco Cases II (2007) 41 Cal.4th 1257, 1275–1276.)

Finally, Fiskars ignores the public interest exception to the issue 

preclusion doctrine, whereby “[e]ven when the threshold requirements are 

satisfied, courts may not apply issue preclusion if considerations of policy or 

fairness outweigh the doctrine’s purpose in a particular case.” (Bullock v. 

City of Antioch (2022) 78 Cal.App.5th 407, 416.) Here, there were no facts 

before the trial court that would have allowed it to make a determination on 

demurrer as to whether this exception applies.

Accordingly, for the reasons stated, the issue preclusion doctrine 

provides no basis for upholding the judgment of dismissal.

B. Exclusive Concurrent Jurisdiction.

“The doctrine of ‘ “exclusive concurrent jurisdiction” ’ provides that 

when two or more courts have subject matter jurisdiction over a dispute, the 

court that first asserts jurisdiction assumes it to the exclusion of the others.” 

(BBBB Bonding Corp. v. Caldwell (2021) 73 Cal.App.5th 349, 374.) 

“The [judge-made doctrine of exclusive concurrent jurisdiction] ‘is based upon 

the public policies of avoiding conflicts that might arise between courts if 

they were free to make contradictory decisions or awards relating to the same 

controversy and preventing vexatious litigation and multiplicity of suits. 
17

[Citation.] The rule is ‘a judicial rule of priority or preference and is not

jurisdictional in the traditional sense of the word,’ in that it ‘does not divest a

court, which otherwise has jurisdiction of an action, of jurisdiction.’

[Citation.] Because it is a policy rule, application of the rule depends upon

the balancing of countervailing policies.” (Shaw v. Superior Court (2022) 78

Cal.App.5th 245, 255–256.)

“[T]he rule of exclusive concurrent jurisdiction does not require

absolute identity of parties, causes of action or remedies sought in the initial

and subsequent actions. [Citations.] If the court exercising original

jurisdiction has the power to bring before it all the necessary parties, the fact

that the parties in the second action are not identical does not preclude

application of the rule. Moreover, the remedies sought in the separate

actions need not be precisely the same so long as the court exercising original

jurisdiction has the power to litigate all the issues and grant all the relief to

which any of the parties might be entitled under the pleadings.” (Plant 

Insulation Co. v. Fiberboard Corp. (1990) 224 Cal.App.3d 781, 788.)

In briefing, the parties dispute whether the Mangini court has the 

power to bring them before it in order to litigate all the issues and to grant all 

the relief to which Mateel might be entitled under the FAC. Fiskars reads 

the Modified Consent Judgment broadly, arguing “the Mangini court has the 

power to grant complete relief on how to warn under Proposition 65 for 

Fiskars’ Leaded Crystal Products.” Fiskars relies on specific terms in the 

Modified Consent Judgment, including the terms granting the Attorney 

General exclusive authority to enforce future warning violations and 

automatically binding the Settling Defendants’ successors and assigns.

Mateel responds that there is no evidence that Fiskars qualifies as a 

Settling Defendant or a Subsidiary Settling Party under the Modified 
18

Consent Judgment and, even if there were, there is no provision in the

Judgment authorizing the court to retain jurisdiction to resolve future 

disputes. Mateel directs us to legal authority requiring a request for 

retention of jurisdiction to be made by the parties in writing or orally before 

the court. (E.g., Wackeen v. Malis (2002) 97 Cal.App.4th 429, 433 [“like the 

settlement agreement itself, the request [for retention of jurisdiction] must be 

made orally before the court or in a signed writing . . . . If, after a suit has 

been dismissed, a party brings a [Code Civ. Proc.] section 664.6 motion for a 

judgment on a settlement agreement but cannot present to the court a 

request for retention of jurisdiction that meets [Code Civ. Proc., § 664.6’s] 

requirements, then enforcement of the agreement must be left to a separate 

lawsuit”].)

As before, we need not resolve the parties’ disputes over the scope or

meaning of the Modified Consent Judgment, but merely point out that they 

are factual issues not properly resolved at the demurrer stage. (Gould, 

supra, 31 Cal.App.4th at p. 1146; StorMedia, supra, 20 Cal.4th at p. 456, 

fn. 9.) Accordingly, because we are unable to resolve whether the Mangini

court “has the power to litigate all the issues and grant all the relief to which

any of the parties might be entitled under the pleadings” (Plant Insulation 

Co. v. Fiberboard Corp., supra, 224 Cal.App.3d at p. 788), the applicability of

the doctrine of exclusive concurrent jurisdiction is an issue that must be 

decided on another day.

V. Conclusion.

The trial court had no right to rely on its inherent authority to control 

litigation in order to consider a document that was not before it on demurrer 

and, even if the document had been, to resolve factual ambiguities in the 

document when the parties had no opportunity to present extrinsic evidence. 
19

(Ante, pp. 8–13.) Nor can the applicability of the doctrine of issue preclusion

or exclusive concurrent jurisdiction be resolved at the demurrer stage, when 

the record remains undeveloped. (Ante, pp. 13–18.)

Accordingly, having rejected each proposed ground for sustaining 

Fiskars’s demurrer, we reverse the judgment of dismissal and remand the 

matter for further proceedings. (Fremont Indemnity Co. v. Fremont General

Corp., supra, 148 Cal.App.4th at p. 119 [“A demurrer must dispose of an 

entire cause of action to be sustained”].) Given the procedural posture of the 

case, our opinion should not be read as deciding any other issue, including 

whether Mateel will be able to demonstrate its entitlement to relief in further 

proceedings.

DISPOSITION

The judgment of dismissal is reversed. On remand, the trial court shall 

vacate its order sustaining defendants’ demurrer without leave to amend and 

enter a new order overruling the demurrer.

_________________________

Jackson, P. J.

WE CONCUR:

_________________________

Simons, J.

_________________________

Wiseman, J.*

A164638/Mateel Environmental Justice Foundation v. Fiskars Living US, LLC

* Retired Associate Justice of the Court of Appeal, Fifth Appellate 

District, assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.