Can’t Torpedo Contradictory Complaint Based on One of Its Allegations—C.A. Action Is Reinstated Based on Purported Failure to Warn of Carcinogen in Product

By a MetNews Staff Writer

A demurrer may not be sustained based on a factual allegation that fails to amount to a cause of action where a contradictory averment does suffice, Div. Seven of the Court of Appeal for this district has held, reversing a judgment of dismissal in a case in which it is alleged that a muscle building compound contains a chemical known to cause cancer without the warning required by Proposition 65 appearing on packaging.

Los Angeles Superior Court Judge Barbara Scheper on Aug. 24, 2020, sustained a demurrer, without leave to amend, to the complaint filed by Zachary Stein against Black Diamond Supplements, LLC, for an alleged violation of the Safe Drinking Water and Toxic Enforcement Act, enacted by voters in 1986. The judge immediately proceeded to sign a judgment of dismissal.

Stein had pled, inconsistently, that Black Diamond’s product “Muscle Plexx” contains androstenedione—a carcinogen which, under Health & Safety Code §25249.5, requires a warning—and that it contains a precursor to the body’s production of androstenedione.

Code Section

That code section provides:

“No person in the course of doing business shall knowingly and intentionally expose any individual to a chemical known to the state to cause cancer or reproductive toxicity without first giving clear and reasonable warning to such individual.”

The complaint sets forth that “California identified and listed Androstenedione as a cancer-causing toxic substance as early as May 3, 2011” and alleges that Black Diamond “failed to sufficiently warn consumers and individuals in California about potential exposure to Androstenedione in connection with Defendants’ manufacture, import, sale, or distribution” of Muscle Plexx, in violation of Proposition 65.”

Civil penalties, injunctive relief and attorney fees are sought.

Black Diamond’s Contention

Scheper apparently accepted Black Diamond’s argument that Proposition 65 does not require a warning where a product contains a precursor to a chemical that appears on the governor’s Proposition 65 list, rather than the listed chemical. There was no written tentative ruling and her explanation of her decision was oral.

In an unpublished opinion reversing the judgment, Justice John L. Segal said:

“Stein alleged that Monster Plexx contains androstenedione, that Black Diamond knows Monster Plexx contains androstenedione, and that Black Diamond sells Monster Plexx as a muscle building compound, i.e., knows and intends consumers will ingest Monster Plexx. These allegations state facts sufficient to constitute a state a cause of action for violating section 25249.6.”

2001 Decision

Segal acknowledged that Stein also pled that Monster Plexx contains a precursor to androstenedione and that, under the Sept. 18, 2001 Court of Appeal decision in Consumer Cause, Inc. v. Weider Nutrition International, it is only the presence in a product of a chemical appearing on the Proposition 65 list that gives rise to the need for a warning.

In that case, Presiding Justice Paul A. Turner, now deceased, pointed out:

“When defendants’ products initially come into human contact, they do not cause cancer. It is only as a result of chemical reactions within the body that the natural level of a listed substance, testosterone, is increased to potentially carcinogenic levels.”

Turner went on to say:

“There is nothing in the ballot statement which suggests Proposition 65 was intended to apply when a person is exposed to a noncarcinogenic chemical which then causes a substance naturally occurring in the body to become carcinogenic.”

Segal found that even if Consumer Cause were applied, it would not justify sustaining a demurrer to Stein’s complaint, explaining:

“To the extent Stein’s theory of liability is that Monster Plexx contains a chemical different from androstenedione that is not on the Proposition 65 list but that converts into androstenedione when ingested, Stein may not have alleged facts sufficient to constitute a cause of action under Consumer Cause (an issue we do not reach here). But that was not Stein’s (only) theory. Stein also alleged multiple times that Monster Plexx ‘contains’ androstenedione.”

The jurist continued:

“Giving Stein’s allegations a reasonable interpretation, and recognizing that the complaint does not include a detailed analysis of the chemical composition and nature of the compounds (an analysis more appropriate for summary judgment), Stein alleged alternative theories of relief….”

Inconsistent pleading, he noted, is permissible.

Stein also says in the complaint, Segal recited, that androstenedione and its precursor are the same.

“On demurrer, we must accept Stein’s allegation as true, even if, as a matter of organic chemistry, it is unlikely or improbable,” he wrote, adding: “And which chemical(s) Monster Plexx actually contain(s) is a factual question we cannot resolve on demurrer.”

The case is Stein v. Black Diamond Supplements, B308482.

Kevin Jason Cole of the Beverly Hills form of KJC Law Group, A.P.C., and Robert Tauler of the downtown Los Angeles firm of Tauler Smith LLP represented Stein. Mariel Covarrubias and Kristen A. Johnson of the Sacramento firm of Murphy, Campbell, Alliston & Quinn acted for Black Diamond.