Judge: Olivia Rosales, Case: 21STCV03297, Date: 2022-07-28 Tentative Ruling

Case Number: 21STCV03297    Hearing Date: July 28, 2022    Dept: SEC

SKYLAR R. v. MARUCHAN, INC.

CASE NO.:  21STCV03297

HEARING:  07/28/22

JUDGE:  OLIVIA ROSALES

#9

TENTATIVE HEARING

Defendants/Cross-Complainants/Cross-Defendants SOMARA HANG; and JENNY’S DONUTS AND CROISSANTS Motion for Summary Adjudication is GRANTED in part and DENIED in part.

Opposing Party(s) to give Notice.

This product liability action was filed by Plaintiffs SKYLAR R., a minor by and through her GAL TIFFANY FARABAUGH; ARYANNA R., a minor by and through her GAL TIFFANY FARABAUGH; and TIFFANY FARABAUGH, an individual (collectively “Plaintiffs”) on January 27, 2021. On June 14, 2021, the operative Second Amended Complaint (“SAC”) was filed. The relevant facts, as alleged, are as follows: “On April 26, 2019, Defendant Somara Hang, the owner and manager of Defendant Jenny’s Donuts, sold and handed 5-year-old, Plaintiff Skylar a Maruchan Instant Lunch noodle soup cup that had been filled just been filed to its brim with boiling hot water. Plaintiff Skylar received the cup while standing inside of Jenny’s Donuts.” (SAC ¶19.) “While Plaintiff Skylar waited for her cup of noodles to finish cooking and cooling, her chair bumped the table and tipped the light, inadequately balanced, and defectively designed Maruchan Styrofoam cup over, spilling scalding hot boiling water onto her lap, causing severe burns.” (SAC ¶24.)

The SAC asserts the following causes of action: (1) Negligence; (2) Strict Liability – Failure to Warn; (3) Strict Liability – Design Defect; (4) Strict Liability – Manufacturing Defect; and (5) Negligent Infliction of Emotional Distress.

Defendants/Cross-Complainants/Cross-Defendants SOMARA HANG; and JENNY’S DONUTS AND CROISSANTS (collectively “Hang and Jenny’s Donuts”) move for summary adjudication of the fifth cause of action (as asserted by Aryanna R. and Tiffany Farabaugh); the fourth cause of action; and the second cause of action.

Fifth Cause of Action – Negligent Infliction of Emotional Distress

Relying on Fortman v. Forvaltningsbolagent Insulan AB (2013) 212 Cal.App.4th 830, 838 (Fortman), Hang and Jenny’s Donuts maintain that Plaintiffs cannot establish the second Thing requirement because neither Farabaugh nor Aryanna R. contemporaneously perceived the injury-causing event—the cup spilling its contents onto Skylar R. Fortman holds that bystander recovery is not permitted “on nothing more than the observation of the results or aftermath of the defendant’s infliction of harm, however direct and contemporaneous….” (Id.)

In Opposition, Plaintiffs argue that summary adjudication must be denied because: (1) Farabaugh contemporaneously witnessed Skylar R. suffering an injury when she observed Skylar R. screaming and then saw noodles from the cup on Skylar R.’s pants; and (2) Hang and Jenny’s Donuts fail to provide any evidence to support the argument that Aryanna R. was unaware that Skylar R. suffered any injury at the moment the injury-causing event occurred.

The elements of a cause of action for negligent infliction of emotional distress are as follows: (1) legal duty to use due care (direct victim or bystander); (2) breach of such legal duty; (3) damage or injury (serious emotional distress); and (4) cause of the resulting damage or injury. (Huggins v. Longs Drug Stores California, Inc. (1993) 6 Cal.4th 124, 129; Bogard v. Employers Casualty Co. (1985) 164 Cal.App.3d 602, 618.)  “[A] plaintiff may recover damages for emotional distress caused by observing the negligently inflicted injury of a third person if, but only if, said plaintiff: (1) is closely related to the injury victim; (2) is present at the scene of the injury producing event at the time it occurs and is then aware that it is causing injury to the victim; and (3) as a result suffers serious emotional distress….” (Thing v. La Chusa (1989) 48 Cal.3d 644, 667-668.)

Hang and Jenny’s Donuts argue that because Farabaugh and Aryanna R. were not looking at Skylar when the cup fell over, they did not contemporaneously witness the injury producing event at the time it occurred. Although Farabaugh and Aryanna R. heard Skylar scream, Farabaugh and Aryanna R. could not have known that Skyler was injured by hot soup and noodles until after they ran over and observed the noodles in Skylar’s lap. (SSMF Nos. 10 and 22.)

As indicated, Hang and Jenny’s Donuts analogize this case to Fortman. In Fortman, the plaintiff and decedent were scuba diving when the plaintiff noticed decedent begin to struggle underwater and became unresponsive on the ocean floor. (Fortman at 833.) Plaintiff testified that at the time she believed decedent had suffered a heart attack, when in fact, decedent’s injury was caused by defendant’s defective scuba diving equipment. (Id.) Because the plaintiff did not have the contemporaneous awareness that defendant/manufacturer’s negligence was causing the decedent’s harm, Plaintiff failed to meet the second Thing requirement. (Id. at 845.)

Neither Farabaugh nor Aryanna R. declare or testify that they saw the noodle soup cup spill onto Skylar’s lap. However, it is undisputed that Farabaugh and Aryanna R. were present and aware that Skylar was suffering an injury at the time the alleged injury-causing event occurred. (SSMF Nos. 7-10 and 20-22.)  Farabaugh declares, “Although I did not actually see the Instant Lunch Soup Cup tip over, I knew the Maruchan Instant Lunch Soup’s hot contents spilled onto Skylar and burned her because I saw noodles on Skylar’s lap and her pants looked were the moment I heard her scream in pain.” (Farabaugh Decl., ¶11.) Aryanna R. declares, “Although I do not know how the Maruchan Instant Lunch spilled, I knew Skylar was injured the moment she screamed because I had just told her to be careful that the soup was hot.” (Aryanna R. Decl., ¶7.) “[C]ase law permits recovery based on an event perceived by other senses so long as the event is contemporaneously understood as causing injury to a close relative.” (Fortman at 841.) “Thing does not require that the plaintiff have an awareness of what caused the injury-producing event, but the plaintiff must have an understanding perception of the ‘event as causing harm to the victim.’ [Citation omitted.]” (Id. fn. 4.)

Although it is clear that neither Farabaugh nor Aryanna R. saw the injury occur, there are triable issues of material facts raised as to whether they perceived the injury producing event. It is disputed whether Farabaugh and Aryanna R. comprehended that Skylar’s injuries were caused by the allegedly defective soup cup since the injury occurred mere moments after Farabaugh and Aryanna R. witnessed Skylar sit down with the cup of Maruchan Instant Lunch Soup. (PAMF Nos. 45 and 47.) Here, unlike Fortman, Plaintiffs present evidence to show that they were aware that the allegedly defective Maruchan Instant Lunch cup caused Skylar R.’s injuries. The facts support the conclusion that Farabaugh and Aryanna R. had the requisite level of awareness. At the very least, this point is disputed, and the Court is unable to summarily decide this issue.

Summary adjudication of the fifth cause of action is DENIED.

Fourth Cause of Action – Strict Liability-Manufacturing Defect

In Opposition, Plaintiffs state that “Plaintiffs do not oppose Defendants’ motion concerning the manufacturing defect claim.” (Opp. 6:7-8.)

Summary adjudication of the fourth cause of action is GRANTED.

Second Cause of Action – Strict Liability-Failure to Warn  

“California law recognizes separate failure to warn claims under both strict liability and negligence theories. In general, a product seller will be strictly liable for failure to warn if a warning was feasible and the absence of a warning caused the plaintiff’s injury. [Citation.] Reasonableness of the seller’s failure to warn is immaterial in the strict liability context.” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 181.)

It is undisputed that “[p]rinted on the ‘Instant Lunch’ product…were the following warnings: ‘CAUTION: HOT!’ and ‘HANDLE WITH CARE ESPECIALLY WHEN SERVIING CHILDREN.’ (SSMF No. 38.) It is also undisputed that the subject Maruchan Instant Lunch cup did not contain a warning about the danger of tipping.

Hang and Jenny’s Donuts argue that there was no duty to warn because the danger that hot contents might spill and cause burns is known and obvious. Hang and Jenny’s Donuts further argue that, even if there was a duty to warn the product did contain warnings about the hot contents and an instruction to handle with care. Hang and Jenny’s Donuts contend that Skylar was warned about the hot liquid before the subject accident occurred, and that the lack of sufficient warnings on the product did not cause Skylar’s injuries.

In Opposition, Plaintiffs argue that Defendants had a duty to warn of the Instant Lunch Cup’s increased risk of tipping over, and that the danger of tipping was not open and obvious. Plaintiff proffers the declaration of Aryanna R., which states that “[p]rior to this incident, [Aryanna R.] did not know that the Maruchan Instant Lunch Cup could easily tip over due to the shape of the cup’s design, and it was not obvious… at the time of the incident. [¶] Had Defendant Somara Hang warned me of the increased chances of the Maruchan Instant Lunch cup tipping over and spilling due to its shape, I would not have purchased it or gave one of the cups to my sister Skylar.” (Aryanna R. Decl., ¶¶9-10.) As such, triable issues of material fact exist regarding Plaintiffs’ ability to establish the failure to warn claim.

Summary adjudication of the second cause of action is DENIED.