1

Filed 2/27/23 Mateel Environmental Justice Foundation v. Fiskars L i ving 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

,

Plaint iff and Appellant,

v.

FISKA R S LIVING US, LLC , et al.

,

Defendant s and Respondent s

. A 164638

( 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 sustain ed the

demurrer of defendant s Fiskars Living US, LLC

, and Fiskars Brands, Inc.

(collectively, Fiskars)

, in a matter brought under the Sa fe 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 faile d 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.

S ustaining 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 dec ided by a consent judgment first entered in 1993 and then reentered

as modified in 200 1

. We agree with Mateel that, accepting as true th e facts

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

the trial court could prop e rly take judicial notice, there are no grounds upon

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

re verse the judgment of dismissal and return this matter for further

proceedings consistent with th is opinion

.

FACTUAL AND PROC EDURAL 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 drinkware 2 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 2 2 , 20 2 1 , Mateel filed the operative first amended complaint

(FAC) against Fiskars

. The FAC alleg ed 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, wit hout 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 include s “ goblets, decanters, wine
glasses, champaign flutes, and high ball glasses

. . . . ” ( Sic. )3

Fiskars’ s products without proper warning . M ateel 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, Fiska rs 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 doctrine 3 bar red Mateel from relitigating what constitutes legally

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

conclusively de cided 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 require d th is case to be stay ed or dismiss ed

because the Mangini cour t has exclusive and continuing jurisdiction over th e

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 warn ing regime set forth in the

Modified C onsent J udgment 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

doctrine s that : (1) Fiskars was a party to, or in privity with a party to

, the

Modified C on sent J udgment ; or that (2) the issue s raised in this action w ere

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

argued the exclusive concurrent proceedings doctrine was i napplicable

because Mangini was not a “concurrent pro ceeding [] ” 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 sustain ing Fiskars’ s demurrer without leave to amend

. In

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

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

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

( Rutherford v. Owens

- Illinois, Inc . (1997) 1 6 Cal.4th 953, 967 ) , t he 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 t his 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 .” ( C ode C iv

. Proc ., § 430.30, sub d. (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 decid ing Mat eel’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 c ontends the trial court’ s ruling w as 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 A ttorney General’s exclusive authority to prosecute

violations of the Modified C onsent J udgment. Mateel reasons that this case

involves different parties

, different claims , and different t ransactions from

th ose 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 los t 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 of6

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 de murrer 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 entit led

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 pr oving 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 i n 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.

T he trial court relied on its inherent judicial authority to control the

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

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

support i ts ruling , the court made t hree findings. First

, “[t]he injunctive

relief provided by the [Modified Consent J udgment ] 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 Cons ent J udgment to allow modification to “ b e 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 ne w 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

Am erica

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

Cryst al 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 ag ainst 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 expos ing

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 ma tter by a consent

judgment. Th e 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 defendant s (hereinafter,

Settling Defendants ) number ed 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 (3 d 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. T his was error several times over.9

As stated ante

, Fiskars requested judicial notice of the Modified

Consent Judgment in demurring to the FAC. T he 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 claim s

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 wa s 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

de murrer 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

claim s “man y 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

. . . . ” F iskars then c oncludes the Mangin i 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 claim s

.

To be s ure, a lthough the Modified Consent Judgment was not attached

to the FAC or judicially noticed by the court

, it i s referenced in the FAC

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

. . . Section 25249.7 to compel defenda nts to bring their business practices10

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,

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

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

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

warning requirements consiste n t with those required under the Modified

Consent Judgment.

In any event

, th e 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 re lying on its inherent

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

Cal.App.5 th 490, 513 [“ A court is authorized

. . . only to act within the bounds11

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

, s ome 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 p rohibited
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 a nd 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

Se ttling 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 m anufacture d 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 Lead ed 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 liabilit y, 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, agen ts, parents, affiliates, divisions and subsidiaries, and the
successors or assigns of any of them, are hereby released from all claims,12

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

dismissal, can attempt to m ake sense of th ose terms

. I t is to demonstrate the

numerous ambiguities in the Modified Consent Judgment, including

ambiguities regarding the persons that qualif y as Settling Defendants or

Subsidiary Settling Part ies ( see Modified Consent Judgment, at pp. 1, 14

– 15,

pars. 3, 31 )

, and the circumsta nces 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 w ithout 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

. . . co nvert 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 C orp . (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 whic h 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

constitut e 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 su ccessors 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 t o them

. . . . ”13

provisionally considering any extrinsic evidence offered by the parties, that

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

Thus, because the p roper interpretation of a written agreement raises

disputable issue s ( Gould, supra

, 31 Cal.App.4 th 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. 114 6 ;

Blank v. Kirwan (198 5 ) 39 Cal.3d 311, 318 [“ ‘ We treat the demurrer as

admitting all material facts properly pleaded, but not contentions, d eductions

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 existe nce,

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 (2 012) 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 determine d 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 .)

T he 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 i s a compl e te defense to the FAC . Mateel

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

establishing , one, that the issues raised in the F AC relating to the adequacy

of F iskars’ s Proposition 65 warnings we re identical to the issues actually

decided in Mangini or , two , that Fiskars wa s a Settling Defendant or in

privity with a Settling Defendant under the M odified C onsent J udgment.

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

proving the threshold requirements for application of this doctrine. We

agree.

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

claims are identical to tho se litigated and actually decided in Mangini

. Contrary to Fiskars’ s suggestion, the FAC does not allege Fiskars violated15

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

C onsent J udgment . Rather, t he FAC alleges Fiskars provid ed a warning

different from or inferior to the Mangini warning s and th ereby failed to

provide clear and reasonable warnings to individuals exposed to lead from

Fiskars’ s products. ( S ee 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 e ntered in

. . . Mangini ” ].) Thus, nothing on the face

of the FAC proves Mateel is attemptin g to relitigate the adequacy of any

warning a ccepted as Proposition 65

- compliant in Mangini

. (See DKN

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

Nor wa s 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 J udgment. None of the names of

the Fiskars defendants in this case a ppears on e xhibit 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

respo ndents’ 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 c ertain of the Settling Defendants identified on exhibit 1 , such as

Waterford Crystal Limited and Wate rford Wedgwood, PLC. B ecause 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 T

obacco (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 ( 20 07) 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.5 th 407, 416. ) Here, there were no facts

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

demurrer as to w hether this exception applies

. Accordingly, for the reasons stated , the issue preclusion doctrine

provide s no basis for uphold ing the judgment of dismissal

.

B. Exclusive Concurrent Jurisdiction.

“T he doctrine of ‘ “exclusive concurrent jurisdiction” ’ provi des 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 v exatious 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 jurisdi ction 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 sepa rate

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, 78 8. )

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 th e FAC. Fiskars reads

the Modified Consent Judgment broadly

, arguing “ th e 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 Cons ent Judgment , including the terms grant ing the Attorney

General exclusive authority to enforce future warning violations and

automatically bind ing 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 Modified18

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

Judgment authorizing the court to retain jurisdiction to resolve fu ture

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 b ut 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 th e 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 un develop ed

. ( Ante , pp. 13

– 18

. )

Accordingly, h aving 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

T he 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.