Judge Thomas Falls, Case 22STCV25883 2023-01-30 Tentative Ruling

STARBUCKS CORPORATION'S DEMURRER TO PLAINTIFF'S COMPLAINT is SUSTAINED. Leave to amend is to be determined as to the products liability cause of action. The demurrer is TBD as to the breach of implied warranty cause of action because the court sees no analysis/argument in the demurrer.

The court requests Plaintiff to be prepared to discuss the exact allegations it intends to add/amend and the law that would support a cause of action for products liability.

This is a personal injury action. Plaintiff alleges that she was burned when the lid fell off a cup of coffee.

On August 10, 2022, Plaintiff MERCEDES SEVILLA filed suit against Defendants STARBUCKS CORPORATION; JACKLYN SAUCEDO (the store manager) for 1. STRICT PRODUCTS LIABILITY 2. NEGLIGENCE 3. BREACH OF IMPLIED WARRANTY.

A demurrer may be asserted on any one or more of the following grounds: (a) The court has no jurisdiction of the subject of the cause of action alleged in the pleading; (b) The person who filed the pleading does not have legal capacity to sue; (c) There is another action pending between the same parties on the same cause of action; (d) There is a defect or misjoinder of parties; (e) The pleading does not state facts sufficient to constitute a cause of action; (f) The pleading is uncertain (“uncertain” includes ambiguous and unintelligible); (g) In an action founded upon a contract, it cannot be ascertained from the pleading whether the contract is written, is oral, or is implied by conduct; (h) No certificate was filed as required by CCP §411.35 or (i) by §411.36. CCP §430.10. Accordingly, a demurrer tests the sufficiency of a pleading, and the grounds for a demurrer must appear on the face of the pleading or from judicially noticeable matters. CCP §430.30(a); Blank v. Kirwan, (1985) 39 Cal.3d 311, 318.

The face of the pleading includes attachments and incorporations by reference (Frantz v. Blackwell, (1987) 189 Cal.App.3d 91, 94); it does not include inadmissible hearsay. Day v. Sharp, (1975) 50 Cal.App.3d 904, 914.

Defendant demurs to the 1^st cause of action for products liability and 3^rd cause of action for breach of implied warranty.

The following pertinent allegations comprise Plaintiff’s 1^st cause of action:

Defendants failed to adequately warn of the potential burn risks from carrying or spilling coffee. As a proximate and legal cause of the defects referenced above, the failure to use reasonable care to warn or give adequate instructions and/or warnings of the defective and dangerous condition of the coffee when used in an intended manner, Plaintiff sustained extensive past and future economic and noneconomic damages, physical injuries, medical expenses, emotional distress, loss of earnings, loss of earning capacity, pain and suffering, and other such damages all in an amount to be proven at trial.

In effect, Plaintiff’s products liability cause of action is predicated upon the failure to warn about the temperature of the Venti Caffe Americano.

Strict liability for a “failure to warn” maybe be imposed if (1) the defendant manufactured the product, (2) the product had potential risks that were known or knowable in light of the scientific and medical knowledge that was generally accepted in the scientific community at the time of manufacture, (3) the potential risks presented a substantial danger when the product is used or misused in an intended or reasonably foreseeable way, (4) ordinary consumers would not have recognized the potential risks, (5) defendant failed to adequately warn or instruct of the potential risks, (6) plaintiff was harmed, and (7) the lack of sufficient warnings was a substantial factor in causing plaintiff’s harm. (CACI 1205) (emphasis added).

Defendant argues that there are no facts suggesting that Defendant manufactured the product and that in terms of the scope of a manufacturer’s duty to warn about the risk of hot liquid, the danger is so open and obvious as a matter of law. (Demurrer p. 3.)

In opposition, Plaintiff merely refers to 19-29 of her complaint without providing an analysis.

Here, though Defendant fail to provide binding authority, the court agrees with Defendant that the risk of walking with a hot cup of coffee carries a potential risk of spill. In fact, Plaintiff alleges that the container holding the coffee was hot; after all, she ordered hot coffee. (Complaint ¶12.) Thus, as a “product can be defective in its manufacture or design, or because it fails to include a warning about known risks” and a “known risk” associated with hot coffee is that the hot coffee can spill and that hot liquids can burn the skin, the court finds that Plaintiff has failed to state a cause of action. (Shih v. Starbucks Corporation (2020) 53 Cal.App.5th 1063, 1067.)

As for leave to amend, the burden of proving a reasonable possibility that an amendment can cure the defect is squarely on the plaintiff. (Blank v. Kirwan (1985) 39 Cal.3d 311, 318.) In order to meet this burden, a plaintiff must submit a proposed amended complaint. (Total Call Internat. Inc. v. Peerless Ins. Co. (2010) 181 Cal.App.4th 161, 166.) The plaintiff must demonstrate how the complaint can be amended to state a cause of action, and such showing may be made to the trial court. (Taxpayers for Improving Public Safety v. Schwarzenegger (2009) 172 Cal.App.4th 749, 781.) As such, leave to amend a complaint is properly denied in sustaining a demurrer where the plaintiff does not suggest how the complaint might be amended to state a cause of action. (Grossmont Union High School Dist. V. State Dept. of Education (2008) 169 Cal.App.4th 869, 875-876.)

Here, it appears that the problem with the complaint is not one of facts, but whether legal authority supports Plaintiff’s allegations.

Therefore, should Plaintiff seek leave to amend, the court expects Plaintiff to present the authority that supports its allegations during the hearing. If Plaintiff fails to do so, the court will sustain the demurrer without leave to amend as to the 1^st cause of action.

Though Defendant demurs to the cause of action, the court does not see any arguments in the motion itself.[1]

Thus, as the court cannot make a parties’ arguments, the demurrer is TBD as to this cause of action.[2]

Based on the foregoing, the demurrer is SUSTAINED with leave to amend as to the products liability cause of action and OVERRULED as to the breach of implied warranty cause of action.

[1] Plaintiff addresses the matter, but again merely recites allegations in its complaint.

[2] That said, the court inclined to sustain the demurrer as to this cause of action as it is unclear what warranty hot coffee would carry.