Judge Lee S. Arian, Case Number: 20STCV09127, Date: 2023-12-05 Tentative Ruling

This is an action arising from an explosion of heat striking Plaintiff’s face on March 5, 2018 while she waited at a Panda Express restaurant counter. On March 5, 2020, Plaintiff Donna Smith (“Plaintiff”) filed a complaint against Defendants Panda Restaurant Group, Inc. (“Defendant”), Plaza Del Amo Properties, LLC, and Does 1 through 25, alleging causes of action for: (1) Negligence and (2) Premises Liability.

On February 27, 2023, Defendant filed and served the instant motion for summary judgment. On November 16, 2023, Plaintiff filed and served an opposition to the motion. On November 30, 2023, Defendant filed and served a reply brief.

On December 5, 2023, after hearing, the Court continued the hearing on Defendant’s motion for summary judgment to December 18, 2023. The Court ordered Defendant to submit a supplemental brief regarding “what demonstrates to the Court what the distance was in 2018 by December 8, 2023.” (12/05/23 Minute Order.) Plaintiff was given the opportunity to submit a response by December 12, 2023. (Id.)

The Court continued the hearing for further briefing because “Defendant has brought a summary judgment motion on the grounds that Plaintiff’s allegations are scientifically impossible based on the distance Plaintiff was from the kitchen.” (Id.) “Plaintiff opposes the motion based primarily on her contention that the distance she was from the kitchen must have been less than what she estimated at her deposition and, if that is the case, science does not establish that no triable issue of fact exists.” (Id.) Plaintiff asserts that “once science is out of the mix, then the case essentially becomes an issue of credibility between her and the Panda Express cook” whom declares that “the event never occurred and that he did not suffer any injuries on the date Plaintiff alleges she was injured.” (Id.)

On December 8, 2023, Defendant submitted further briefing and on December 12, 2023, Plaintiff submitted an opposition to Defendant’s further briefing.[1]

The function of a motion for summary judgment or adjudication is to allow a determination as to whether an opposing party cannot show evidentiary support for a pleading or claim and to enable an order of summary dismissal without the need for trial. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) Code Civ. Proc. § 437c(c) “requires the trial judge to grant summary judgment if all the evidence submitted, and all inferences reasonably deducible from the evidence and uncontradicted by other inferences or evidence, show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.) “The function of the pleadings in a motion for summary judgment is to delimit the scope of the issues; the function of the affidavits or declarations is to disclose whether there is any triable issue of fact within the issues delimited by the pleadings.” (Juge v. County of Sacramento (1993) 12 Cal.App.4th 59, 67.)

“As to each claim as framed by the complaint, the defendant moving for summary judgment must satisfy the initial burden of proof by presenting facts to negate an essential element, or to establish a defense.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1520.) Courts “liberally construe the evidence in support of the party opposing summary judgment and resolve doubts concerning the evidence in favor of that party.” (Dore v. Arnold Worldwide, Inc. (2006) 39 Cal.4th 384, 389.) Once the defendant has met its burden, the burden shifts to the plaintiff to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. (Aguilar v. Atlantic Richfield Co., supra, 25 Cal.4th 826, 849.) “[T]he plaintiff must produce substantial responsive evidence sufficient to establish a triable issue of material fact on the merits.” (Sangster v. Paetkau (1998) 68 Cal.App.4th 151, 163.) “A mere scintilla of evidence does not create a conflict for the jury’s resolution.” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291.) “An issue of fact . . . is not created by speculation, conjecture, imagination or guess work.” (Brown v. Ransweiler (2009) 171 Cal.App.4th 516, 525.)

Before analyzing the merits of Defendant’s motion, the Court will address some procedural defects as to the moving and opposition papers concerning Plaintiff’s separate statement, purported evidentiary objections, untimeliness of the opposition, as well as Plaintiff’s contradictory declaration in support of the opposition to the motion.

“An opposing party who contends that a fact is disputed must state, on the right side of the page directly opposite the fact in dispute, the nature of the dispute and describe the evidence that supports the position that the fact is controverted. Citation to the evidence in support of the position that a fact is controverted must include reference to the exhibit, title, page, and line numbers.” (Cal. Rules of Court, Rule 3.1350, subd. (f)(2).) “[I]n ruling on a motion for summary judgment, a trial court must consider all the evidence submitted, except the court may ignore evidence not disclosed in [the opposing] party’s separate statement.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 315.) “[I]f it is not set forth in the separate statement, it does not exist.” (United Community Church v. Garcin (1991) 231 Cal.App.3d 327, 337 [emphasis in original].)

Here, Plaintiff purports to dispute Defendant’s Undisputed Material Fact, Numbers 26-29. (Plaintiff’s Response to Defendant’s Separate Statement of Material Facts at 7:1-8:8.) Plaintiff, however, does not cite any evidence in support of such disputed material facts and merely states “Disputed. Discovery is still open, and new evidence may come to light.” (Id.) Thus, Plaintiff has failed to cite any evidence in support of Defendant’s Undisputed Material Facts, Numbers 26-29. Thus, the Court will treat such material facts as undisputed given Plaintiff’s failure to comply with California Rules of Court, Rule 3.1350, subd. (f)(2).

“A party desiring to make objections to evidence in the papers on a motion for summary judgment must either: (1) Submit objections in writing under rule 3.1354; or (2) Make arrangements for a court reporter to be present at the hearing.” (Cal. Rules of Court, Rule 3.1352, subd. (1)-(2).) “All written objections must be served and filed separately from the other papers in support of or in opposition to the motion.” (Cal. Rules of Court, Rule 3.1354, subd. (b).)

The Court finds that both Plaintiff and Defendant object to evidence presented by the other party; however, the parties have only done so in their respective separate statements. The parties’ purported objections do not comply with California Rules of Court, Rule 3.1354, subd. (b). Neither Plaintiff nor Defendant set forth their evidentiary objections in a separate document apart from the separate statement. Thus, the format of the parties’ objections are not compliant with California Rules of Court, Rule 3.1354 and will not be considered or ruled upon.

Defendant contends that the Court should disregard Plaintiff’s opposition to its motion for summary judgment, which was filed and served on November 15, 2023.

Code Civ. Proc., § 437c, subd. (b)(2) provides that “[a]n opposition to the motion [for summary judgment] shall be served and filed not less than 14 days preceding the noticed or continued date of hearing, unless the court for good cause orders otherwise.” “No paper may be rejected for filing on the ground it was untimely submitted for filing.” (Cal. Rules of Court, Rule 3.1300, subd. (d).)

Here, the initial hearing on the motion for summary judgment was set for December 5, 2023. Defendant contends that Plaintiff did not provide Defendant with her opposition until November 26, 2023. The proof of service attached to the opposition indicates that it was served on Defendant’s counsel on November 15, 2023. Although filed and served late, the Court exercises its discretion and will consider Plaintiff’s late-filed opposition.

Defendant asserts that Plaintiff’s declaration in opposition to the motion contradicts her deposition testimony and should be disregarded.

A plaintiff is barred from “opposing summary judgment [by] filing a declaration that purports to impeach his or her own prior sworn testimony.” (Scalf v. D.B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1522.) “[A] party cannot create an issue of fact by a declaration which contradicts his [or her] prior discovery responses.” (Shin v. Ahn (2007) 42 Cal.4th 482, 500, fn. 12.) “Where a declaration submitted in opposition to a motion for summary judgment clearly contradicts the declarant’s earlier deposition testimony or discovery responses, the trial court may fairly disregard the declaration and conclude that there is no substantial evidence of the existence of a triable issue of fact.” (Whitmire v. Ingersoll-Rand Co. (2010) 184 Cal.App.4th 1078, 1087.)

Plaintiff testified at deposition that she was standing approximately 10 to 15 feet from the chef while he was cooking. (Skalsky Decl., Exhibit 2 at p. 47:14-17.)

In support of the opposition, however, Plaintiff declares that she is not a scientist or a builder of any sort and did not possess any measuring tools on the date of loss. (Smith Decl., ¶ 4.) Plaintiff attests that the approximations of distances and times provided in her deposition were just approximations. (Id., ¶ 5.) Plaintiff sought medical treatment due to the large eruption of flame from the Panda Express employee’s cooking wok and she sustained injuries. (Id., ¶ 6.) Plaintiff states that her deposition occurred over 4 years after the incident and her statement that she was “approximately 10 to 15 feet” from the eruption of flame that injured her was likely inaccurate, and she was actually perhaps even 5 to 7 feet away. (Id., ¶¶ 7-8.)

The Court finds that Plaintiff’s declaration as to the distance she was standing from the flame eruption contradicts Plaintiff’s deposition testimony. Plaintiff cannot now seek to create a triable issue of material fact as to the distance she was standing from the wok when the flame erupted.[2] The Court therefore disregards Plaintiff’s declaration as it attempts to contradict her earlier deposition testimony under Shin v. Ahn, supra, 42 Cal.4th 482, 500, fn. 12.

Defendant contends that summary judgment is proper because Plaintiff cannot establish a prima facie case that the incident occurred as alleged. Plaintiff asserts that Defendant has not met its initial burden to shift the burden to Plaintiff because its evidence necessary relies on factual disputes, i.e., distance approximations and outright denials of the incident’s occurrence. In its further briefing, Defendant asserts that Plaintiff has failed to establish that the distance from the burner to where she stood has changed. Plaintiff contends that whether Defendant’s conduct caused her injuries is a question of fact for the jury, and Defendant has not met its burden to negate any element or establish a complete defense to Plaintiff’s complaint.

In the complaint, Plaintiff alleges that “as she waited at the counter for her food to be ready, a large flame and/or fire erupted from a wok and/or gas range near the front counter and an explosion struck her face, thereby causing Plaintiff to endure severe injury and pain.” (Complaint, ¶ 9.) Defendant asserts that Plaintiff cannot establish how she suffered injuries standing 10 to 15 feet away from a wok. (Motion at 5:17-19.)

“To succeed in a negligence action, a plaintiff must show the following: (1) the defendant owed the plaintiff a legal duty; (2) the defendant breached the duty; and (3) the breach proximately or legally caused the plaintiff’s damages or injuries.” (Thomas v. Stenberg (2012) 206 Cal.App.4th 654, 662.) “The elements of a negligence claim and a premises liability claim are the same.” (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158.)

The causation element of negligence is met when a plaintiff establishes that: (1) the defendant’s breach of duty was a substantial factor in bringing about the plaintiff’s harm; and (2) there is no rule of law relieving the defendant of liability. (Leslie G. v. Perry & Associates (1996) 43 Cal.App.4th 472, 481.) A plaintiff must establish that the defendant’s act or omission was a substantial factor in bringing about the injury. (Saelzler v. Advanced Group 400 (2001) 25 Cal.4th 763, 774.) Evidence of causation must be substantial and cannot be mere speculation or conjecture. (Showalter v. Western Pac. R. Co. (1940) 16 Cal.2d 460, 471.) “The substantial factor standard generally produces the same results as does the but for rule of causation which states that a defendant’s conduct is a cause of the injury if the injury would not have occurred but for that conduct.” (Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 969.) Generally, causation is an issue of fact but “where only one conclusion may be reasonably drawn from the facts, the question becomes one of law.” (Banville v. Schmidt (1974) 37 Cal.App.3d 92, 106.)

Defendant presents the following undisputed material facts: (1) Plaintiff filed a Complaint against Defendant alleging causes of action for Negligence and Premises Liability (Defendant’s Separate Statement at No.1); (2) Plaintiff went to the Panda Express on 3825 Torrance Boulevard in Torrance, California on March 5, 2018 for the purpose of purchasing lunch with her husband (Id. at No. 2); (3) Plaintiff arrived at the Panda Express in the early afternoon between 12:30 p.m. and 1:30 p.m. (Id. at No.3); (4) at the time of Plaintiff’s visit, there were more than 10 people in the Panda Express restaurant (Id. at No.4); (5) Plaintiff ordered her food, was waiting between five and ten minutes to receive her food, and was facing the kitchen at the time the incident occurred (Id. at Nos. 5-7); (6) Plaintiff saw a chef actively cooking food (Id. at No. 8); (7) Plaintiff saw an explosion of flame from the wok area (Id. at No.11); (8) the flame was 4 to 6 feet high (Id. at No.12); and (9) Plaintiff felt an intense heat and high temperature heated air hit her face. (Id. at No.13.)

Defendant presents further undisputed material facts that: (1) Plaintiff alleges that she experienced pain, burning, and irritation on her face and eyes (Id. at No. 14); (2) there were no screams, noises from other customers, alarms, or fire suppression systems triggered by any flame up (Id. at No. 15); (3) no emergency personnel arrived at Panda 32 on March 5, 2018 (Id. at No. 16); (4) the chef using the wok at the time of the incident was not injured on March 5, 2018 (Id. at No. 17); (5) the only potential witnesses to this potential event are Plaintiff, her husband, Defendant’s managers and employees, and Defendant itself (Id. at No. 20); and (6) Plaintiff’s husband did not witness the incident because he was in the restroom. (Id. at No. 21.)

Defendant presents additional undisputed material facts that: (1) in order for Plaintiff to have suffered a second degree burn from the wok flame at a distance of 10 feet or greater, a chef standing approximately 1 foot from the flame would have been killed (Id. at No. 23); (2) in order for Plaintiff to have suffered any pain from the wok flame at a distance of 10 feet or greater, a chef standing approximately 1 foot from the flame would have been killed (Id. at No. 24); and (3) Plaintiff has already provided all facts, witnesses, and other documents in support of her contention that “a large flame and/or fire erupted from a wok and/or gas ranges near the front counter,” “an explosion of heat struck her face thereby causing severe injury and pain,” “dangerously defective woks and/or gas ranges were not properly installed, maintained, cleaned and/or protected,” and that Defendant “carelessly and negligently owned, rented, managed, leased, supervised, inspected operated maintained and/or controlled the premises.” (Id. at No. 26-29.)

Plaintiff testified at deposition that she was standing approximately 10 to 15 feet from the chef while he was cooking. (Skalsky Decl., Exhibit 2 at p. 47:14-17.) Plaintiff testified at deposition that the worker assisting Plaintiff with her food the day of the incident was approximately 4 to 7 feet away from her. (Id., at pp. 50:23-51:7.) Ricardo Rios (“Rios”), who was the cook on the day of the incident, declares that clients ordering food at the counter are typically between ten and twelve feet from the burner. (Rios Decl., ¶ 8.) Rios attests that he does not recall the flames ever flaming up wide and tall during him time working at Panda 32, beyond a small flash when adding garlic to the wok. (Id., ¶ 9.) Rios declares that he has never been substantially burned by the flame of the kitchen burner during his time working at Panda 32 and he is usually between one and two feet from the burner heating the wok. (Id., ¶¶ 7, 10.) Rios states that he does not recall any other Panda employees or customers being burned or injured by the burner flame at any time during his time working at Panda 32. (Id., ¶¶ 12-15.)

According to Defendant’s expert, Erik Christiansen (“Christiansen”), it is not possible for the event described by Plaintiff to have caused pain or a burn injury to Plaintiff. (Decl. of Erik Christiansen, ¶ 15.) Christiansen performed an inspection of the subject Panda Express restaurant on January 17, 2023. (Id., ¶¶ 6,8.) Christiansen states “[a]lthough the arrangement of appliances on the cook line had changed since the time of the incident, [he] was able to measure the distance from the wok station to . . . where a customer could stand behind the counter as twelve to fifteen feet” and that “Plaintiff estimated her distance from the flame to be between ten and fifteen feet.” (Id., ¶ 8.)

Defendant has presented evidence that the incident could not have occurred as stated by Plaintiff and therefore has shown there is no triable issue of material fact as to causation. The burden now shifts to show a triable issue of material fact.

Plaintiff presents evidence that she does not recall anyone standing near her at the time of the explosion. (Albert Decl., Exhibit A at p. 57:6-8.)

Plaintiff presents the declaration of her expert, J. Cord Guthrie (“Guthrie”), who declares that the distances that Plaintiff provided in her deposition were just approximations by a lay witness. (Guthrie Decl., ¶ 8.) Guthrie attests that if Plaintiff’s body was within 5 to 7 feet away from the eruption of flame, then “it is more likely than not based on a reasonable degree of scientific probability that she suffered the injuries she claims from this incident, including burns and irritation to her face.” (Id., ¶ 9.) To the contrary, Guthrie states that if Plaintiff “were further away than 10 feet, then she likely would not have been injured, absent the cook holding the pan being killed.” (Id., ¶ 10.)

Plaintiff presents evidence that the layout of the Panda Express restaurant kitchen has changed since the incident. (Alberts Decl., Exhibit A at pp. 45:19-46:23.) Plaintiff also presents Defendant’s discovery responses in which Defendant indicates that the restaurant layout has been changed since the incident. (Id., Exhibit B at pp. 13:10-14:24.) Plaintiff testified at deposition that she made an incident report in person at the restaurant two to three days after the incident.[3] (Id., Exhibit A at p. 64:8-17.)

Initially, the Court will address Plaintiff’s contention that the restaurant has been modified or altered sometime after the incident and before January 2023. (Opposition at 4:1-2.) While Plaintiff cites to her own deposition testimony and Defendant’s responses to Special Interrogatories in support of such contention, Defendant’s response to Special Interrogatory Number 13 sets forth the extent of changes to the restaurant. Defendant stated that “[t]here has been one project to remove the cook line equipment in order to waterproof the back wall. This project commenced in April 2022 and is in progress.” (Alberts Decl., Exhibit C at p. 14:19-23.)

While the restaurant has undergone alterations, Plaintiff presents no evidence that: (1) the distance from the wok to where a patron stands waiting for one’s food has changed; or (2) the distance from which the restaurant counter is located from the wok has changed. The crux of this action is that Plaintiff was injured due to a flame erupting from a wok. Plaintiff has not put at issue or otherwise contradicted the validity of the inspection done by Defendant’s expert, Erik Christiansen. Plaintiff’s own expert, J. Cord Guthrie, attested in support of the opposition that if Plaintiff was standing further than 10 feet from an eruption of flame “then she likely would not have been injured, absent the cook holding the pan being killed.” (Guthrie Decl., ¶ 10.)

The Court finds that there is no triable issue of material fact as to the issue of causation. Plaintiff testified at deposition that she was standing approximately 10 to 15 feet from the wok when the flame erupted. Defendant has presented evidence that no injury could have occurred to Plaintiff if she was standing at 10 feet or more when a flame or fire erupted. (Christiansen Decl., ¶ 15.) Plaintiff’s own expert attests that if Plaintiff were standing more than 10 feet away from a flame then she would likely not have been injured absent the cook holding the pan being killed. (Guthrie Decl., ¶ 10.) The cook, Mr. Rios, was neither killed nor injured on the day of the incident and attests that no customer has been burned or injured by the flame from the kitchen burner.

Plaintiff has failed to produce any substantial responsive evidence that the 4-to-6-foot flame that occurred at the restaurant on the day of the alleged incident caused her injuries. Plaintiff’s conjectures and speculation, without substantial responsive evidence, are not sufficient to raise a triable issue of a material fact. Other than Plaintiff’s declaration in support of the opposition—which is contradictory and has been disregarded as stated above—Plaintiff presents no evidence that she was standing less than 10 feet from the flame. Thus, Plaintiff presents no evidence to rebut her own expert’s opinion that, absent the cook being killed, she would not have been injured while standing more than 10 feet from the flame. Plaintiff testified at deposition that she was 10 to 15 feet from the flame; however, she does not dispute the fact that she could not have been burned or injured if she was standing 10 feet or more from the subject flame. (Plaintiff’s Response to Defendant’s Separate Statement of Material Facts at Nos. 23-24.)

The Court finds that Defendant has met its burden in showing that Plaintiff’s Negligence and Premises Liability claims cannot be established due to lack of causation as the alleged flame—where Plaintiff was standing at least 10 feet away from—could not have caused her injuries. Plaintiff presents no substantial evidence to create a triable issue of material fact.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT27@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court website at www.lacourt.org. Please be advised that if you submit on the tentative and elect not to appear at the hearing, the opposing party may nevertheless appear at the hearing and argue the matter. Unless you receive a submission from all other parties in the matter, you should assume that others might appear at the hearing to argue. If the Court does not receive emails from the parties indicating submission on this tentative ruling and there are no appearances at the hearing, the Court may, at its discretion, adopt the tentative as the final order or place the motion off calendar.

Hon. Lee S. Arian

Judge of the Superior Court

[1] Defendant has separately moved to continue trial. That request may now be moot, though the Court is willing to continued trial pursuant to that request if the parties deem that to be necessary.

[2] Plaintiff’s citations to: (1) People v. Avery (1950) 35 Cal.2d 487; (2) People v. Huston (1943) 21 Cal.2d 690; (3) People v. Gunn (1959) 170 Cal.App.2d 234; and (4) Hughes v. Quackenbush (1934) 1 Cal.App.2d 349 are inapposite to support Plaintiff’s contention that her poor estimate of distance to the flame does not bar her claim. None of the cited cases concern a declaration which contradicts earlier deposition testimony in the context of a motion for summary judgment. The issue, despite Plaintiff’s argument, is not improbable testimony but rather contradictory testimony being used to defeat a motion for summary judgment.

[3] This testimony at deposition does not appear to be accurate as the subject Incident Report was submitted on March 22, 2018, which is more than three days after the incident. (Declaration of Andrew Iles in Support of Defendant’s Reply at Exhibit A.)