CENTER FOR SELF-IMPROVEMENT & COMMUNITY DEVELOPMENT v. Lennar Corp.

Appellant, the Center for Self-Improvement and Community Development (Center), sued respondent developers on allegations of generating asbestos dust during their construction activities in the Bayview Hunters Point community. Although it complied with all the prerequisites for bringing a citizen suit to enforce Proposition 65, at the time of giving the mandatory 60-day notice and thereafter filing its complaint, the Center’s corporate powers had been suspended. Entering judgment for respondents following the granting of their motion for judgment on the pleadings, the trial court ruled that this suspension of corporate powers at the time of serving notice was a defense that could not be cured by the Center’s subsequent revivor.

Resolution of this appeal involves the interplay of the 60-day notice statute governing Proposition 65 citizen enforcement, and the corporate suspension and revivor statutes. We conclude that respondents’ challenge to the complaint did not raise a noncurable affirmative defense. Rather, invocation of the Center’s lack of capacity was a mere plea in abatement. Having attained reinstatement prior to judgment, the Center regained its capacity to…