Judge: Michael E. Whitaker, Case: 23SMCV00797, Date: 2024-12-10 Tentative Ruling
Case Number: 23SMCV00797 Hearing Date: December 10, 2024 Dept: 207
TENTATIVE
RULING
|
DEPARTMENT |
207 |
|
HEARING DATE |
December
10, 2024 |
|
CASE NUMBER |
23SMCV00797 |
|
MOTION |
Motion
for Summary Judgment/Summary Adjudication |
|
Defendants Accor Management U.S., Inc. and
Next Century Partners, LLC, erroneously sued as Accor Hotels & Resorts,
LLC and Next Century Partners, LLC dba Fairmont Century Plaza |
|
|
OPPOSING PARTY |
Plaintiff
Yola Roberts |
MOVING PAPERS:
REPLY PAPERS:
SUR-REPLY:
1. Plaintiff’s Objections to Defendants’
Reply Evidence
BACKGROUND
On February 24, 2023, Plaintiff Yola Robert (“Plaintiff”) brought suit
against Defendants Accor Hotels and Resorts, LLC and Next Century Partners, LLC
dba Fairmont Century Plaza, alleging four causes of action for (1) strict
product liability; (2) negligence; (3) breach of implied warranty of
merchantability; and (4) negligent infliction of emotional distress, arising
from allegations that Plaintiff became ill after being served contaminated
oysters at Defendants’ restaurant.
Defendants Accor Management U.S., Inc. and Next Century Partners, LLC,
erroneously sued as Accor Hotels & Resorts, LLC and Next Century Partners,
LLC dba Fairmont Century Plaza (“Defendants”) now move for summary judgment, or
in the alternative summary adjudication, on the following issues:
(1)
Plaintiff’s First Cause of Action for Strict Liability
fails because Plaintiff cannot satisfy her burden of showing the oysters she
consumed at Lumiere on May 6, 2022, caused her claimed injuries.
(2)
Plaintiff’s Second Cause of Action for Implied Warranty
of Merchantability fails because Plaintiff cannot satisfy her burden of showing
the oysters she consumed at Lumiere on May 6, 2022, caused her claimed
injuries.
(3)
Plaintiff’s Third Cause of Action for
Negligence/Negligence Per Se fails because Plaintiff cannot prove any negligent
conduct on the part of Defendants caused her claimed injuries. Plaintiff’s
Third Cause of Action for Negligence/Negligence Per Se fails because Plaintiff
cannot satisfy her burden of showing the oysters she consumed at Lumiere on May
6, 2022, caused her claimed injuries.
(4)
Plaintiff’s Fourth Cause of Action for Negligent
Infliction of Emotional Distress fails because Plaintiff cannot prove any
negligent conduct on the part of Defendants caused her claimed injuries.
Plaintiff’s Fourth Cause of Action for Negligent Infliction of Emotional
Distress fails because Plaintiff cannot satisfy her burden of showing the
oysters she consumed at Lumiere on May 6, 2022, caused her claimed injuries.
(5)
Plaintiff’s claim for punitive damages fails because
Plaintiff has no evidence of malicious, fraudulent, or oppressive conduct by
Defendants
Plaintiff opposes the motion and Defendants reply.
REQUEST FOR JUDICIAL NOTICE
Defendants request judicial notice of the following:
Exhibit A: the Complaint filed in this case
Exhibit B: An article from the U.S. Food and Drug
Administration website, fda.gov, titled “FDA Advises Restaurants and Retailers
Not to Serve or Sell Potentially Contaminated Raw Oysters from Canada (April
2022)” available at: https://www.fda.gov/food/alerts-advisories-safetyinformation/fda-advises-restaurants-and-retailers-not-serve-or-sell-potentially-contaminated-raw-oysters-canada
As for Exhibit A, Judicial
notice may be taken of records of any court in this state. (Evid. Code, § 452, subd. (d)(1).) Because the Complaint is part of the Court’s
record for this case, the Court may take judicial notice of it. (Ibid.) However, “while courts are free to take
judicial notice of the existence of each document in a court file, including
the truth of results reached, they may not take judicial notice of the truth of
hearsay statements in decisions and court files. Courts may not take judicial notice of
allegations in affidavits, declarations and probation reports in court records
because such matters are reasonably subject to dispute and therefore require
formal proof.” (Lockley v. Law Office
of Cantrell, Green, Pekich, Cruz & McCort (2001) 91 Cal.App.4th 875,
882 [cleaned up].) Accordingly, the
Court takes judicial notice of the existence of the Complaint filed in this
matter as a court record, but not the truth of the allegations contained
therein.
As for Exhibit B, Defendants seek
judicial notice of the document as an official act of the legislative,
executive, and judicial departments of the United States, pursuant to Evidence
Code section 452, subdivision (c), as well as facts and propositions not
reasonably subject to dispute and capable of immediate and accurate
determination by resort to sources of reasonably indisputable accuracy. In support, Defendants cite several cases
where courts have taken judicial notice administrative agency documents,
including documents posted on the FDA’s website. Therefore, the Court similarly takes judicial
notice of the FDA’s article regarding contaminated raw oysters from April 2022.
EVIDENCE
Plaintiff’s Evidentiary
Objections
The Court rules as follows with respect to Plaintiff’s evidentiary
objections:
1.
Overruled
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Overruled
10. Overruled
11. Overruled
Defendants’ Evidentiary Objections
As discussed in more detail below, Defendants’ general objections to
the declarations of Gary Coburn, Jeffrey E. Galpin, and Gordon Allread are
overruled.
The Court rules as follows with respect to Defendants’ specific
evidentiary objections:
1.
Overruled
2.
Overruled
3.
Overruled
4.
Overruled
5.
Overruled
6.
Overruled
7.
Overruled
8.
Overruled
9.
Overruled
10. Overruled
11. Overruled
12. Overruled
13. Overruled
14. Overruled
15. Overruled
Plaintiff’s Objections to Defendants’ Reply Evidence
Plaintiff objects to the evidence proffered in connection with Defendants’
Reply, as being procedurally improper.
The Court agrees and does not generally consider reply evidence, as it deprives
the opposing party of a fair opportunity to respond. (San Diego Watercrafts, Inc. v. Wells
Fargo Bank, N.A. (2002) 102 Cal.App.4th 308, 316 [“Where a remedy as
drastic as summary judgment is involved, due process requires a party be fully
advised of the issues to be addressed and be given adequate notice of what facts
it must rebut in order to prevail”]; see also Wall Street Network Ltd. v.
New York Times Co. (2008) 164 Cal.App.4th 1171.)
Therefore, the Court sustains Plaintiff’s objections to the
Declaration of Jay V. Solnick, M.D., the Declaration of Laura Ryan, and all
attached exhibits submitted in connection with the Reply. The Court does not consider those
declarations or the exhibits attached thereto.
LEGAL STANDARDS – MOTION FOR SUMMARY
JUDGMENT/ADJUDICATION
“[T]he party moving for
summary judgment bears the burden of persuasion that there is no triable issue
of material fact and that he is entitled to judgment as a matter of law[.]
There is a triable issue of material fact if, and only if, the evidence would
allow a reasonable trier of fact to find the underlying fact in favor of the
party opposing the motion in accordance with the applicable standard of proof.”
¿(Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 850
(hereafter Aguilar).) ¿“[T]he party moving for summary judgment bears an
initial burden of production to make a prima facie showing of the nonexistence
of any triable issue of material fact; if he carries his burden of production,
he causes a shift, and the opposing party is then subjected to a burden of
production of his own to make a prima facie showing of the existence of a
triable issue of material fact.” ¿(Ibid.; Smith v. Wells Fargo Bank,
N.A. (2005) 135 Cal.App.4th 1463, 1474 [summary judgment standards held by Aguilar
apply to summary adjudication motions].)
Further, “the trial court
may not weigh the evidence in the manner of a factfinder to determine whose
version is more likely true. Nor may the
trial court grant summary judgment based on the court's evaluation of credibility.” (Aguilar, supra, 25 Cal.4th. at p. 840
[cleaned up]; see also Weiss v. People ex rel. Department of Transportation
(2020) 9 Cal.5th 840, 864 [“Courts deciding motions for summary judgment or
summary adjudication may not weigh the evidence but must instead view it in the
light most favorable to the opposing party and draw all reasonable inferences
in favor of that party”].)
A party may move for
summary adjudication as to one or more causes of action, affirmative defenses,
claims for damages, or issues of duty if that party contends that there is no
merit to the cause of action, defense, or claim for damages, or if the party
contends that there is no duty owed. (See Code Civ. Proc., § 437c, subd. (f)(1).) “A motion for summary adjudication shall be
granted only if it completely disposes of a cause of action, an affirmative
defense, a claim for damages, or an issue of duty.” (Ibid.) A cause of action has no merit if: (1) one or
more elements of the cause of action cannot be separately established, even if
that element is separately pleaded, or (2) a defendant establishes an
affirmative defense to that cause of action.
(See Code Civ. Proc., §
437c, subd. (n); Union Bank v. Superior
Court (1995) 31 Cal.App.4th 573, 583.)
Once the defendant has shown that a cause of action has no merit, the
burden shifts to the plaintiff to show that a triable issue of material fact
exists as to that cause of action. (See Code Civ. Proc., § 437c, subd. (o)(2); Union Bank v. Superior Court, supra, 31 Cal.App.4th at p.
583.) Additionally, in line with Aguilar,
“[o]n a motion for summary adjudication, the trial court has no discretion to
exercise. If a triable issue of material fact exists as to the challenged
causes of action, the motion must be denied. If there is no triable issue of
fact, the motion must be granted.” (Fisherman's Wharf Bay Cruise Corp.
v. Superior Court (2003) 114 Cal.App.4th 309, 320.)
DISCUSSION
1. CAUSATION
The crux of Defendants’
arguments for the first four issues pertaining to the strict liability and negligence-based
causes of action are that Plaintiff cannot prove the oysters consumed at
Defendants’ restaurant caused Plaintiff’s injuries.
a.
Defendants’
Evidence
In support, Defendants have
provided the following evidence:
· The FDA warned that due to a norovirus
contamination, “Retailers should not serve raw oysters harvested from the
following harvest locations within British Columbia, BC 14-8 and BC 14-15, with
harvest dates between January 31, 2022 and May 5, 2022, which will be printed
on product tags.” (RJN Ex. B.)
· The only types of oysters served at Lumiere
(the restaurant where Plaintiff dined) on May 6, 2022 were Island Petite and
Malaspina. (Bojorquez Decl. ¶ 8.)
· The product tag for the Island Petite oysters
indicates they were harvested from Samish Bay, WA. (Bojorquez Dec. ¶ 5 and Ex. 1.)
· The product tag for the Malaspina oysters
indicates they were harvested on May 3, 2022 from harvest locations BC 15/4 and
AQ 347. (Boroquez Decl. ¶ 6 and Ex. 2.)
· No other diners at Lumiere complained of food
poisoning from meals served the weekend of May 5-7, 2022. (Bojorquez Decl. ¶
9.)
· No other diners complained to Lumiere about
the Malaspina oysters or Island Petite oysters that were served. (Boroquez Decl. ¶ 10.)
· Lumiere did not receive any communication
from its oyster supplier, Santa Monica Seafood Company, regarding contamination
warnings or recalls from the FDA, CDC, or any other governmental agency for
March 6, 2022 to May 6, 2022. (Boroquez
Decl. ¶¶ 11-12.)
· “The Lumiere kitchen staff follows best
practices for cleanliness, hygiene and proper food preparation, cooking and
food storage.” (Boroquez Decl. ¶ 13.)
Thus, Defendants have met
their initial burdens of production and persuasion to demonstrate that
Plaintiff cannot prove the illness was caused by contaminated oysters served at
Lumiere.
b.
Plaintiff’s
Evidence
Plaintiff has provided the
expert Declaration of Gary Coburn, casting doubt on the safety of Lumiere’s
handling of raw oysters as follows:
15. Ramon Bojorquez, Executive Chef at Lumiere Restaurant, provided
deposition testimony regarding the policies and procedures of Lumiere
Restaurant with respect to the handling of the oysters served to its customers,
including Plaintiff. He testified that the oysters were handled by multiple
individuals, each of which who has specific protocols and responsibilities with
respect to the proper handling and temperature monitoring of the oysters.
16. Ramon Bojorquez, Executive Chef at Lumiere Restaurant, testified
that the oyster-shucking safety glove worn by the kitchen staff working in the
oyster-shucking station at Lumiere Restaurant was cleaned only once per day. It
is my opinion that cleaning the oyster-shucking glove only once per day
presents a significant risk of oyster contamination and falls short of the
applicable industry standard to provide a clean and safe environment.
17. Ramon Bojorquez, Executive Chef at Lumiere Restaurant, testified
that on or about May 6, 2022, when live oysters arrived at the restaurant
loading dock in boxes, the boxes were opened and the temperature of the oysters
was checked and recorded with a laser thermometer device. The oysters were then
transported (at an unspecified timeframe) to the restaurant kitchen
cooler/refrigerator. They were eventually moved to the oyster shucking station
where they were then shucked and served.
Per Borjorquez’s testimony, at no stage were the oysters rinsed
throughout this process. Further, while
Lumiere Restaurant produced documents indicating that they have policies,
procedures, and forms used for raw food tracking and for monitoring the
temperature of their various kitchen coolers/refrigerators, the documents
produced were blank. As such, there is no indication that the individuals who,
per the stated policy, checked the oysters or the cooler/refrigerator
temperatures at any stage had any safety training to handle that
responsibility, or that Lumiere Restaurant adhered to any of its other stated
safety policies and procedures on May 6, 2022, when Plaintiff consumed the raw
oysters she was served. See Bojorquez Depo, 87:20 25.
18. At any stage of the handling of the raw oysters, from their ocean
harvesting and transport, their storage, and until they are shucked, served,
and consumed, any variation or fluctuation from strict safety procedure at any
stage can result in contamination.
19. If any single aspect of safety and strict handling protocol is not
met with respect to raw oyster handling, contamination can occur.
20. While Lumiere Restaurant produced documents indicating that they
have policies, procedures, and forms used for raw food tracking and for
monitoring the temperature of their various kitchen coolers/refrigerators, the
documents produced were blank. As such, there is no indication that Lumiere
Restaurant adhered to its stated safety policies and procedures on May 6, 2022,
when Plaintiff consumed the raw oysters she was served.
21. Based on my review of the Retail Food Official Inspection Report
produced by Defendants (Bates Nos. FAIR 000032-000047), which documents an
inspection performed on January 19, 2023, Lumiere Restaurant was found to have
committed several violations in multiple inspection areas by being out of
compliance with several aspects of food handling, including:
·
that no one at the facility possessed a proper a
valid Certified Food Protection Manager certificate;
·
that sanitizer level was not detectable during
active warewashing (dishwashing) at the final rinse; that potentially hazardous
foods were not held in the proper temperature range;
·
that a damaged handwashing cleanser dispenser
was found at the handwashing sink in the kitchen; and
·
that an ice scoop was stored without a
protective container next to ice holding equipment, thus being exposed to
contamination.
22. Because of the violations on or about January 19, 2023, it is my
opinion that, more likely than not, Lumiere Restaurant had a similar lack of
compliance with respect to several aspects of food handling, including
providing adequate handwashing facilities, maintaining proper hot and cold
holding temperatures, and proper surface sanitation protocols, on May 6, 2022,
when Plaintiff consumed the subject oysters.
23. It is my opinion that, to a reasonable degree of scientific
certainty in accordance with the applicable standards of the
restaurant/commercial kitchen industry, improper handling of raw seafood
products resulted in Plaintiff having been served oysters that were
contaminated on or about May 6, 2022.
(Coburn
Decl. ¶¶ 15-23.)
Plaintiff also provided the
expert declaration of Jeffrey E. Galpin, M.D., who reviewed Plaintiff’s medical
records and opined that, “to a reasonable degree of medical and
scientific probability, Plaintiff symptoms, including nausea, abdominal pain,
and mild to moderate liver function abnormalities, not inclusive of a
significantly elevated bilirubin, were caused by her consumption of the raw
oysters and their sauce on May 6, 2022 at Lumiere Restaurant.” (Galpin Decl. ¶
17.)
Therefore, Plaintiff has created a triable issue of material fact as
to whether the food handling practices at Lumiere caused the oysters Plaintiff
and her fiancé consumed to become contaminated, resulting in Plaintiff’s
illness.
Defendants object generally to the expert declarations of Gary Coburn
and Jeffrey E. Galpin, M.D. as too speculative to constitute contradictory
evidence. The Court disagrees.
Gary Coburn testifies that cleaning the oyster-shucking safety glove
only once per day and the failure to follow policies, procedures, and forms to
track the temperature of the raw oysters being served can result in
contamination. (Coburn Decl. ¶¶
16-20.) Coburn further stated that on
January 19, 2023, Lumiere was found to have committed several food handling
violations, and that such violative food handling practices were likely also
occurring in May 2022 when Plaintiff consumed the oysters at issue. (Coburn Decl. ¶ 21-22.)
Further, Dr. Galpin, who reviewed Plaintiff’s medical records,
testified that Plaintiff’s symptoms are consistent with those symptoms that can
present after eating contaminated oysters, and that because Plaintiff’s fiancé
also reported the same symptoms, the cause was likely the oysters the pair ate
at Lumiere. (Galpin Decl. ¶¶ 11-20.)
Thus, Coburn testifies that the food handling practices at Lumiere can
create raw oyster contamination and Galpin testifies that Plaintiff’s (and her
fiancé’s) symptoms are consistent with eating contaminated raw oysters, and the
timing of the onset of their symptoms compared to when the raw oysters were
consumed at Lumiere creates a strong inference that the oysters caused
Plaintiff’s illness. This is sufficient
to create a triable issue of material fact.
Defendants also object to Coburn’s declaration on the grounds that his
curriculum vitae does not provide the training, experience, certification,
education, or other basis to qualify him to opine as an expert in the handling
of oysters. To the contrary, Coburn’s
declaration indicates:
3. I have worked in the restaurant industry since
approximately 1981, where I began restaurant in Rancho Cucamonga, California.
4. From approximately 1986 through the present, I
have worked in the restaurant/hospitality industry either as a direct owner,
principal, founder, or consultant to no less than 100 companies and/or
franchises in the industry.
5. During that time, I have helped create, open,
run, and advise hundreds of individual restaurants, including restaurant
franchising and commercial kitchen design build.
6. During my professional career, I have been
retained as an expert witness in at least 40 cases with respect to issues
involving the restaurant/hospitality industry, including but not limited to
food contamination, slip/trip and falls, burns, industry standards and standard
of care applicable to commercial restaurants/kitchens, and general industry
safety and security. Attached hereto as Exhibit A is a true and correct copy of
my curriculum vitae.
(Coburn
Decl. ¶¶ 3-6.) The curriculum vitae
supports these statements, outlining Coburn’s restaurant experience from 1981
to the present.
Defendants also object to the Coburn declaration for failing to
identify the applicable standards Defendants allegedly violated. To the contrary, in addition to listing the
specific food handling deficiencies identified in the January 19, 2023
inspection report, the Coburn declaration also specifically identifies the failure
to clean the oyster shucking glove more often than once per day and the failure
to monitor refrigeration temperatures.
(Coburn Decl. ¶¶ 16-17.)
Defendants also object to the Galpin Declaration on the grounds that
Dr. Galpin did not personally treat Plaintiff.
Dr. Galpin testifies that he reviewed Plaintiff’s medical records, and
opined as to causation based on his medical expertise and review of Plaintiff’s
medical records. Defendants’ arguments
go to the weight to Dr. Galpin’s statements which the Court cannot consider on
a summary judgment or summary adjudication motion.
2. PUNITIVE DAMAGES
To state a prima facie claim for punitive damages, a plaintiff must
allege the elements set forth in the punitive damages statute, Civil Code
section 3294. (College Hosp., Inc. v. Superior Court (1994) 8 Cal.4th 704,
721.) Per Civil Code section 3294, a
plaintiff must allege that the defendant has been guilty of oppression, fraud,
or malice. (Civ. Code, § 3294, subd. (a).) As set forth in the Civil Code,
(1) “Malice” means conduct which is intended
by the defendant to cause injury to the plaintiff or despicable conduct which
is carried on by the defendant with a willful and conscious disregard
of the rights or safety of others. (2)
“Oppression” means despicable conduct that subjects a person to cruel and
unjust hardship in conscious disregard of that person's rights. (3) “Fraud” means an intentional
misrepresentation, deceit, or concealment of a material fact known to the
defendant with the intention on the part of the defendant of thereby depriving
a person of property or legal rights or otherwise causing injury.
(Civ.
Code, § 3294, subd. (c)(1)-(3), emphasis added.)
Further, a plaintiff must assert facts with specificity to support a
conclusion that a defendant acted with oppression, fraud or malice. To wit, there is a heightened pleading
requirement regarding a claim for punitive damages. (See Smith v. Superior Court (1992) 10
Cal.App.4th 1033, 1041-1042.) “When
nondeliberate injury is charged, allegations that the defendant’s conduct was
wrongful, willful, wanton, reckless or unlawful do not support a claim for
exemplary damages; such allegations do not charge malice. When a defendant must produce evidence in
defense of an exemplary damage claim, fairness demands that he receive adequate
notice of the kind of conduct charged against him.” (G. D. Searle & Co.
v. Superior Court (1975) 49 Cal.App.3d 22, 29 [cleaned up].) In Anschutz Entertainment Group, Inc. v.
Snepp, the Court of Appeal noted that the plaintiffs’ assertions related to
their claim for punitive damages were “insufficient to meet the specific
pleading requirement.” (Anschutz
Entertainment Group, Inc. v. Snepp (2009) 171 Cal.App.4th 598, 643
[plaintiffs alleged “the conduct of Defendants was intentional, and done
willfully, maliciously, with ill will towards Plaintiffs, and with conscious
disregard for Plaintiff's rights. Plaintiff's injuries were exacerbated by the
malicious conduct of Defendants. Defendants' conduct justifies an award of
exemplary and punitive damages”]; see also Grieves
v. Superior Court (1984) 157 Cal.App.3d 159, 166 [“The mere allegation an
intentional tort was committed is not sufficient to warrant an award of
punitive damages. Not only must there be
circumstances of oppression, fraud, or malice, but facts must be alleged in the
pleading to support such a claim”].)
Moreover, “the imposition of punitive damages upon a corporation is
based upon its own fault. It is not imposed vicariously by virtue of the
fault of others.” (City Products Corp. v. Globe Indemnity Co.
(1979) 88 Cal.App.3d 31, 36.) “Corporations are legal entities which do
not have minds capable of recklessness, wickedness, or intent to injure or
deceive. An award of punitive damages against a corporation therefore
must rest on the malice of the corporation’s employees. But the law does
not impute every employee’s malice to the corporation. Instead, the
punitive damages statute requires proof of malice among corporate
leaders: the officers, directors, or managing agents.” (Cruz v.
Home Base (2000) 83 Cal.App.4th 160, 167 [cleaned up].)
Here, the Complaint alleges:
5. Plaintiff is informed and believes and based
upon such information and belief alleges that prior to May 6, 2022, Defendants
FAIRMONT, ACCOR, and Does 1-100, and each of them knew or should have known the
oysters being served at Lumiere restaurant, located inside the Fairmont Century
Plaza Hotel, were contaminated and were part of a recall issued by the Centers
for Disease Control ("CDC") and the Food and Drug Administration
("FDA"). Defendants FAIRMONT, ACCOR, and Does 1-100, and each of
them, knew or should have known of the probable dangerous consequences of
serving contaminated oysters, yet they willfully, and deliberately failed to
avoid the probable dangerous consequences in a conscious disregard for the
rights and safety of customers eating at Lumiere restaurant, including
Plaintiff.
[…]
45. In committing the acts alleged in this
Complaint, Defendants ACCOR, FAIRMONT, and Does 1-100, and each of them, knew
or should have known of the defective, unsafe and dangerous conditions of the
meals that they manufactured and sold to Plaintiff. Defendants had numerous
opportunities to remedy the contaminated oysters at the Lumiere restaurant, as
advised by the CDC and FDA, but failed to do so. In committing the acts
described in this Complaint, the Defendants acted in conscious disregard of the
rights and safety of Plaintiff and are guilty of malice, oppression and/or
fraud thereby warranting an assessment of punitive damages in an amount
appropriate to punish the Defendants and deter others from engaging in similar
wrongful conduct
(Complaint ¶¶ 5, 45.)
As
discussed above, there is a triable issue of material fact as to whether the
food handling practices at Lumiere caused the oysters Plaintiff consumed there
to become contaminated, leading to Plaintiff’s illness. However, even if the food handling practices
at Lumiere did fall below applicable standards, Plaintiff has not produced clear
and convincing evidence demonstrating the requisite scienter, especially on the
part of Defendants’ corporate leaders, at the time Plaintiff dined at Lumiere
to support a claim for punitive damages.
Therefore, the Court grants
Defendants’ motion for summary adjudication as to issue 5.
CONCLUSION AND ORDER
Therefore, the Court grants in part and denies in part Defendants’
motion for summary adjudication. Having
found Plaintiff produced no evidence demonstrating the requisite scienter on
the part of Defendants’ corporate leaders to support a claim for punitive
damages, the Court grants Defendants’ motion for summary adjudication as to
issue 5 – punitive damages.
However, having found Plaintiffs presented evidence creating a triable
issue of material fact as to whether Defendants’ food handling practices caused
the oysters Plaintiff consumed to become contaminated, resulting in Plaintiff’s
illness, the Court denies summary adjudication as to issues 1 through 4. Similarly, because the Court denies summary
adjudication as to issues 1 through 4, the Court similarly denies summary
judgment.
Further, Defendants shall file and serve a proposed Order in
conformance with the Court’s ruling on or before December 24, 2024.
Defendants shall provide notice of the Court’s ruling and file the
notice with a proof of service forthwith.
DATED: December 10, 2024 ___________________________
Michael
E. Whitaker
Judge
of the Superior Court