THE CHEMICAL TOXIN WORKING GROUP INC. v. SANTA BARBARA FISH MARKET, INC.

(Stanley Mosk Courthouse: Dept. 508) August 27, 2026 DEPARTMENT 508 LAW AND MOTION RULINGS

COURTESY COPIES OF THE MOTION. THE HEARING WILL HAVE TO BE CONTINUED SO COPIES CAN BE DELIVERED TO THE COURT FOR ITS CONSIDERATION. THE COURT WILL DISCUSS A NEW HEARING DATE WITH COUNSEL. Case Number: 23STCV28296 Hearing Date: August 27, 2026 Dept: 508 Superior Court of California County of Los Angeles Department 508 THE CHEMICAL TOXIN WORKING GROUP INC., a California non-profit corporation, doing business as HEALTHY LIVING FOUNDATION INC., Plaintiff, vs. SANTA BARBARA FISH MARKET, INC., et al., Defendants. | Case No.: |

| Hearing Date: | August 27, 2026 | Hearing Time: 8:30 a.m. [TENTATIVE] ORDER RE: DEFENDANT SANTA BARBARA FISH MARKET, INC.'S MOTION TO COMPEL COMPLIANCE WITH COURT'S ORDER TO APPEAR FOR DEPOSITION; REQUEST FOR SANCTIONS (ISSUE SANCTIONS OR, ALTERNATIVELY, MONETARY SANCTIONS IN THE AMOUNT OF $13,317, OR BOTH) | Background Plaintiff The Chemical Toxin Working Group Inc. doing business as Healthy Living Foundation Inc. ("HLF") filed this Proposition 65 action on November 17, 2023 against Defendant Santa Barbara Fish Market, Inc. ("Defendant"). The complaint alleges ten causes of action for "Violation of Health & Safety Code Sec. 25249.6, Failure to Provide Clear and Reasonable Warning under Proposition 65."

The complaint alleges, inter alia, that "[t]his action seeks injunctive and declaratory relief and civil penalties to remedy the continuing failure of [Defendant] to warn consumers in California that they are being exposed to Lead and Cadmium, chemicals known to the State of California to cause cancer and reproductive toxicity found in (1) Santa Barbara Fish Market California Grassy Bar Oysters ... (2) Santa Barbara Fish Market Littleneck Clams ... (3) Santa Barbara Fish Market Manila Clams ... (4) Santa Barbara Fish Market Bluepoint Oysters ... and (5) Santa Barbara Fish Market Santa Barbara Hope Ranch Mussels..." (Compl., P. 1.)

On January 9, 2026, the Court granted Defendant's motion to compel HLF's Person Most Qualified and Mr. Steinman. (Order 1/9/26, 9:4-5.) The Court "order[ed] HLF to produce their Person Most Qualified and Mr. Steinman for a remote deposition and to do so by the end of January." (Order 1/9/26, 8:5-6.)

On April 14, 2026, Defendant filed a motion "for an order enforcing compliance with the Court's January 9, 2026 Order requiring plaintiff The Chemical Toxin Working Group, Inc.[] ('CTWG') to produce for deposition its (1) 'Chief Officer' David Steinman, and (2) its Person Most Qualified ('PMQ') to appear for deposition under to Code of Civil Procedure section 2025.230, and imposing monetary sanctions on CTWG. Th[e] motion [wa]s made on the grounds that CTWG and Mr. Steinman refused to appear for deposition as required by the Court's Order..." (Notice of Mot. 4/14/26, 1:28-2:5.)

Defendant filed the motion, a declaration in support, and a separate statement. The hearing was originally set for October 5, 2026, but on April 24, 2026, the Court granted Defendant's ex parte motion to advance the hearing to July 9, 2026.

On June 10, 2026, Defendant filed an amended motion to compel and an amended declaration in support, with the hearing date of July 9, 2026. The attached proof of service indicates that Defendant mailed the motion to HLF at "15503 Ventura Blvd., Suite 900 Los Angeles, CA 91403," on June 10, 2026.

On June 25, 2026, HLF filed an objection to Defendant's initial motion to compel (filed April 14, 2026) for improper service. HLF asserted that Defendant "attached only the notice/motion and separate statement to its April 14, 2026 service email and placed the Declaration of Matthew I. Kaplan and all exhibits - the entire evidentiary basis for the MTC and its $13,317 sanctions request - behind a private Tucker Ellis portal link that required login or email validation with an adversary and that, by Defendant's own statement, expired on April 24, 2026: ten days after the email and months before the hearing." (Obj. 6/25/26, 2:7-12.)

On June 29, 2026, HLF filed another objection, this time to the service of Defendant's amended motion (filed Jule 10, 2026). HLF noted that it "previously objected, on June 25, 2026, to Defendant's April 14, 2026 service of its previous motion, now withdrawn by filing the MTC." (Obj. 6/29/26, 1:25-27.) HLF asserts that mail service was improper because the wrong address was used and it did not receive the moving papers until Saturday, June 27, 2026. (Id., at 2:27.) Additionally, HLF contends that Defendant did not include the Separate Statement in the mailed papers. (Id., at 3:14.) HLF did not file an opposition on the merits to the amended motion and, on July 1, 2026, Defendant filed a reply to HLF's objection regarding improper service.

On July 9, 2026, the hearing did not occur for two separate reasons. The Minute Order from the hearing states as follows: "The Hearing on Motion to Compel Compliance with Court's Order to Appear for Deposition was not scheduled this date due to clerical error. Additionally, there was a service issue. The Court discussed a new date with the parties and other pending issues and reset the hearing as follows: On the Court's own motion, the Hearing on Motion to Compel Motion to Compel Compliance with Court's Order to Appear for Deposition scheduled for 07/09/2026 is continued to 08/27/26 at 10:00 AM in Department 508 at Stanley Mosk Courthouse. The opposition and reply will be by code." (Minute Order 7/9/26, p. 1.)

The operative, instant motion is Defendant's amended motion to compel, filed with the Court on June 10, 2026. Pursuant the proof of service filed by Defendant on July 9, 2026, HLF was served with (1) the amended motion to compel compliance with the Court's Order to appear for deposition, (2) the amended declaration of Matthew I. Kaplan, and (3) the separate statement, all via mail that same day. The address provided is "15303 Ventura Blvd., 9th Floor," which corrects the previous mail address error in Defendant's service.

On August 14, 2026, HLF filed an "objection to service, notice, and to non-conforming moving papers; request for order to e-serve motion papers," in lieu of filing an opposition on the merits. HLF contends that it "renews and incorporates its written objections to Defendant's service, filed June 25 and June 29, 2026 because HLF has never been compliantly served with the operative moving papers and the papers on file do not match the papers served." (Obj. 8/14/26, 6:4-6.)

On August 20, 2026, Defendant filed a reply.

On August 24, 2026, HLF filed an objection to new matter in Defendant's reply. Specifically, "Plaintiff objects to: (1) the Reply's new sanctions theory -- that sanctions are 'mandatory' -- which appears in no moving paper; (2) the new matter first raised in the Reply, including the waiver-by-concession theory; (3) the new evidence first submitted with the Reply; and (4) the three new authorities cited for propositions those opinions do not contain." (Obj. 8/24/26, 1:24-27.) Plaintiff requests that the Court decline to hear the instant motion "or, alternatively, grant Plaintiff leave to file a written response to the Reply's new matter, theories, evidence, authority." (Obj. 8/24/26, 3:9-11, emphasis omitted.)

Discussion

A. The Previous Hearing and HLF's Ex Parte Application As a preliminary matter, HLF's most recently filed objection provides a declaration in support. HLF's counsel attests that on July 1, 2026, Defendant electronically served HLF with its reply to the instant motion. (Poulsen Decl., P. 2.) However, HLF's counsel attests that "[f]rom April 24, 2026 through July 9, 2026 -- seventy-six days -- the Court's docket showed the hearing on Defendant's motion set for October 5, 2026. During that period, my staff telephoned the Court and was told that no hearing was set for July 9, 2026." (Poulsen Decl., P. 3.)

Then, "[o]n the morning of July 9, 2026, the courtroom clerk telephoned my office, and the Court brought counsel onto the line; Mr. Sato and I both appeared. Defendant had appeared that morning, without notice to HLF, on the motion it had quietly advanced. HLF received no notice of a July 9, 2026 hearing before that call, and HLF had no opposition on file." (Poulsen Decl., P. 4.)

HLF's counsel attests that she "filed an ex parte application seeking, among other relief, an order compelling electronic service of Defendant's operative moving papers. The application was presented on August 11, 2026; the Court did not entertain the request that day, continued the application to August 17, 2026 -- past HLF's deadline to respond to Defendant's motion -- and directed that HLF address service in its opposing papers. This filing complies with that direction." (Poulsen Decl., P. 5.)

HLF's counsel explains that "[a]t the August 11, 2026 hearing, at which I appeared, the Court stated Department 508's procedures on the record: no discovery motions of any kind are to be filed until the parties have met and conferred in person or by telephone and, if that fails, have participated in an informal discovery conference reserved through the Court's reservation system. Defendant did not reserve or participate in any informal discovery conference before filing its June 10, 2026 amended motion or before seeking an order that the deposition proceed in person. The Court further stated that a party that filed a motion without the required informal discovery conference 'will not be getting sanctions,' and that such a filing is a 'total waste of time.'" (Poulsen Decl., P. 6.)

The Court notes that HLF filed the ex parte application on August 10, 2026, and when heard on August 17, 2026 the Court granted the application in part. The Order states, inter alia, that "[t]he parties are ORDERED to serve all future papers in this action via email with a link as necessary that does not disappear before the end of the case and is searchable in compliance with the C.C.P and the C.R.C. Additionally, the parties stipulated to serve electronically... The rest of the application is denied." (Ex Parte Order 8/17/26, 2:6-23.)

B. Procedural and Service Issues HLF's objection to Defendant's instant motion contends that the "July 9 mailing is defective on three independent grounds: (1) Frankenstein set: AMTC was filed without a document incorporated by reference and is incomplete; the mailed set is a different set of documents and cannot be reconciled with the set on file, and the operative motion was never properly 'made' -- SB served no separate statement with its June 10 motion, incorporating by reference and mailing a separate statement filed for a materially different, withdrawn motion, which the Rules of Court forbid and which leaves HLF unable to determine which papers, or which separate statement, it is required to answer...; (2) SB failed to e-serve: SB served its mismatching set via mail-only, where electronic service is mandatory between represented parties who have appeared (Code Civ.

Proc., Sec. 1010.6, subd. (b)); and (3) Four conflicting notices/captions of hearing dates/times: every paper in the mailed set bears a superseded, conflicting hearing date, time and department. The July 9 minute order reset the hearing to August 27, 2026 (Poulsen Ex Parte Decl., P. 30, Ex. O [July 9, 2026 Minute Order]), so any notice mailed after that reset that still recites superseded dates is demonstrably wrong on its face." (Obj. 8/27/26, 7:9-23.)

a. Frankenstein Set HLF first contends that notice was not properly made. Specifically, HLF asserts that "[a] motion is not 'made,' and is not properly before the court, until the papers on which it is based are filed and served with the notice. A notice of motion that 'allud[es] to other papers but not attach[es] them' does not satisfy Code of Civil Procedure sections 1005 and 1010; serving a notice of motion 'without the supporting papers identified therein' renders the motion improper, and the remedy is denial. (Weinstein, 25 Cal.App.5th at 320-321.) In Weinstein, on facts that track this matter -- a notice and declaration served without the separate statement -- the Court of Appeal reversed and directed the trial court to deny the motion to compel in its entirety." (Obj. 8/14/26, 8:19-25.)

HLF also asserts that "[u]nder [California Rules of Court] rule 3.1345, the separate statement must be a separate document 'full and complete so that no person is required to review any other document,' and '[m]aterial shall not be incorporated into the separate statement by reference.'... A separate statement that does not comply is disregarded -- treated as though none were filed -- and that failure alone is a sufficient, independent basis on which the Court may deny a motion to compel." (Obj. 8/14/26, 9:2-5, emphasis omitted.)

Defendant opposes this contention, asserting that "SB Fish filed the Separate Statement on April 14, 2026--28 pages, standalone, served electronically as an email attachment. Rule 3.1345(c) prohibits incorporating material within a separate statement by reference--not identifying a previously-filed companion document in a notice." (Reply 8/20/26, 12:10-12.) Defendant cites Weinstein v. Blumberg (2018) 25 Cal.App.5th 316, to assert that it "is inapplicable since no papers other than the notice of motion were served prior to expiration of the deadline to move to compel." (Reply 8/20/26, 12:12-14.) Defendant asserts that it "included the Separate Statement as a belt-and-suspenders measure because CTWG's counsel raised the absence of a separate statement in the original December 2025 motion to compel proceeding and again in her April 9, 2026 email." (Reply 8/20/26, 12:16-18.)

The Court finds that HLF's reliance on Weinstein v. Blumberg, supra, 25 Cal.App.5th at p. 318 inapplicable because in that case, the moving party "served a notice of motion and motion to compel within a statutory deadline, but did not serve any of the required supporting papers upon which the motion was based until 15 court days before the hearing." Here, Defendant filed the separate statement on April 14, 2026. Defendant filed the amended motion and declaration on June 10, 2026. In the amended papers, Defendant explicitly states that it is filed concurrently with the " Separate Statement in Support of Motion [that] was filed April 14, 2026." (Am. Mot., p. 1.) Defendant's separate statement was timely filed and mentioned with the amended moving papers.

HLF's objection further contends that "[w]hether the April 14 separate statement is properly part of the June 10 motion is a contested legal question the Court has not decided, and one only the Court can resolve from the served-and-filed set. Until it does, HLF cannot know whether the operative motion is two papers or three, or which separate statement, if any, governs its response -- and cannot be required to frame a response to papers it cannot yet identify. That the composition of the motion remains for the Court to resolve is not a reason to overlook the defect; it is the reason HLF cannot yet respond." (Obj. 8/14/26, 11:1-7, emphasis omitted.)

HLF asserts that "HLF does not ask the Court to revisit the April 14 or June 10 service. SB itself has taken both off the table: it conceded in its July 1, 2026 Reply that the April 14 papers 'were superseded' and are 'of no legal force or effect,' and that the June 10 mailing 'may have been misdirected.' (SB's July 1, 2026 Reply, at p. 3.) That concession matters: a paper SB itself has declared 'of no legal force or effect' cannot supply the operative separate statement for the June 10 motion.

And even setting the concession aside, a separate statement filed only in support of the withdrawn April 14 motion cannot be borrowed to satisfy rule 3.1345 for a later, differently framed motion -- the rule forbids incorporation by reference and requires a complete, standalone statement. SB therefore cannot claim the withdrawn separate statement is part of the operative motion." (Obj. 8/14/26, 12:9-17.)

The Court notes that the full statement in Defendant's reply filed July 1, 2026, said, inter alia, "the Declaration of Matthew I. Kaplan (and the notice of motion and motion) were superseded by amended versions of those documents that were served by US Mail on June 10, 2026, which was sufficient for the July 9, 2026 hearing on this motion." (Reply 7/1/26, 3:12-15.) Defendant specifically only mentioned the declaration and motion as superseded; Defendant made no mention of its separate statement.

Regarding HLF's incorporation-by-reference argument under California Rules of Court, rule 3.1345(c), the rule states that "[a] separate statement is a separate document filed and served with the discovery motion that provides all the information necessary to understand each discovery request and all the responses to it that are at issue. The separate statement must be full and complete so that no person is required to review any other document in order to determine the full request and the full response.

Material must not be incorporated into the separate statement by reference." Here, Defendant's separate statement is full and complete; it does not reference external documents. Defendant's references to the separate statement in the amended motions do not affect the internal contents of the separate statement. Additionally, Defendant filed the separate statement earlier than the amended motions but made it clear in the amended motions that the separate statement filed April 14, 2026 is the applicable document.

Accordingly, the Court does not find that the "Frankenstein set" of documents invalidates service.

b. Electronic Service HLF also contends that service on the instant motion is improper due to Defendant's failure to electronically serve the instant motion. HLF cites Code of Civil Procedure section 1010.6, subdivision (b)(2), which states that "[a] person represented by counsel, who has appeared in an action or proceeding, shall accept electronic service of a notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission." HLF also cites subdivision (b)(4) of the statute, which prescribes that "[a] person represented by counsel shall, upon the request of any person who has appeared in an action or proceeding and who provides an electronic service address, electronically serve the requesting person with any notice or document that may be served by mail, express mail, overnight delivery, or facsimile transmission."

HLF asserts that it "is an electronic filer, has served a Consent to Electronic Service and Notice of Electronic Service Address upon SB's improper condition to providing compliant e-service, where the clerk rejected the filing, stating: 'eService is now mandatory.' (Poulsen Ex Parte Decl., P. 33, Ex. R.) HLF has been served electronically by the Court and by SB throughout this litigation." (Obj. 8/14/26, 16:14-18.)

Defendant responds, asserting that " Section 1010.6(b)(4) requires electronic service between represented parties. The statute contains no invalidation clause. No published decision holds that mail service is void solely because e-service was also available. The Legislature provided no consequence for using mail instead of email. And the purpose of section 1010.6--ensuring receipt of papers--was achieved: CTWG received every document, acknowledged receipt, and filed 335 pages of responsive briefing. Under the McGee factors, section 1010.6(b)(4) is mandatory in the obligatory sense but directory in the invalidating sense. Substantial compliance satisfies the statute." (Reply 8/20/26, 9:15-21.)

California Rules of Court, rule 8.701(b) is the appropriate rule here. Regarding electronic service, "[a]ll documents must be served electronically on parties who have consented to electronic service or who are otherwise required by law or court order to accept electronic service. All parties represented by counsel are deemed to have consented to electronic service." (Cal. Rules of Court, rule 8.701(b)(2) .) It is undisputed that HLF is represented by counsel. Thus, service must be effectuated electronically.

This does not preclude Defendant from also serving HLF through mail. However, Defendant must electronically serve HLF, otherwise, service is ineffective. Defendant's reply and proof of service do not demonstrate that it served HLF electronically. Accordingly, the instant motion is denied, without prejudice, on procedural grounds. In light of the foregoing conclusion, the Court declines to address the additional arguments presented in HLF's objection.

Conclusion

Based on the foregoing, Defendant's motion to compel compliance with the Court's January 9, 2026 Order and request for sanctions is DENIED without prejudice. HLF is ordered to give notice of this Order.¿ DATED: August 27, 2026 ________________________________ Hon. Teresa A. Beaudet Judge, Los Angeles Superior Court Case Number: 24STCV07570 Hearing Date: August 27, 2026 Dept: 508 Superior