Judge: Thomas Falls, Case: 22STCV25883, Date: 2023-05-02 Tentative Ruling
Case Number: 22STCV25883 Hearing Date: May 2, 2023 Dept: O
HEARING
DATE: Tuesday,
May 2, 2023
RE: MERCEDES SEVILLA
vs STARBUCKS CORPORATION, et al. (22STCV25883)
________________________________________________________________________
STARBUCKS CORPORATION'S
DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT
Responding
Party: Plaintiff
Tentative Ruling
STARBUCKS CORPORATION'S
DEMURRER TO PLAINTIFF'S FIRST AMENDED COMPLAINT (“FAC”) is SUSTAINED
WITHOUT leave to amend.
Background
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.
On October 26, 2022, Defendant Starbucks filed a demurrer,
which the court sustained with leave to amend.
On February 9, 2023, Plaintiff filed her FAC asserting the
same causes of action.
On March 13, 2023, Defendant filed a demurrer to the FAC.
On April 19, 2023, Plaintiff filed her opposition to the
demurrer.
On April 25, 2023, Defendant filed its reply.
Legal Standard
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.
Discussion
As a prefatory matter, the court notes that both parties’
papers are nearly identical to those submitted on the first demurrer.
Defendant demurs to the 1st cause of action for
products liability and 3rd cause of action for breach of implied
warranty on the grounds that both fail to plead sufficient facts to constitute
a cause of action and are uncertain. The court will address each cause of
action.
1.
1st Cause of Action for Strict Products
Liability
The following pertinent allegations comprise Plaintiff’s 1st
cause of action:
On October 8, 2021, Defendants
negligently, carelessly, or recklessly manufactured and distributed coffee at a
dangerously hot temperature not reasonably safe for human consumption or
exposure to Plaintiff Mercedes Sevilla. Furthermore, Defendants failed
to adequately warn Plaintiff about serving her with coffee in a container
without an adequately secured lid at dangerously hot temperatures to her.
(FAC ¶¶19, 20) (emphasis added).
In effect, Plaintiff’s products
liability cause of action is predicated upon the failure to warn about the
temperature of the Venti Caffe Americano and failure to warn “of the potential
burn risks from carrying or spilling coffee.” (FAC ¶28) (emphasis added).
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 the allegations in the FAC.
Here, 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. 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, as Plaintiff has already
been given leave to amend but failed to cure the defects and the law is clear
that one can not a products liability cause of action for known risks, the
court SUSTAINS the demurrer as to the 1st cause of action for strict
products liability WITHOUT leave to amend.
2.
Third Cause of Action for Breach of Implied
Warranty
The pertinent allegation Plaintiff
uses to support this cause of action is that “[t]he subject coffee’s dangerously
hot temperature was not the temperature generally acceptable in the trade,
was not fit for ordinary purposes for which such products are used, was not
adequately labeled as such, and did not measure up to the promises or facts
stated in sales literature and communications by and from Defendants.” (FAC
¶40) (emphasis added).
Defendant argues that Plaintiff is
misapplying a breach of implied warranty cause of action because under
California law, a plaintiff claiming breach of an implied warranty of
merchantability must show that the product did not possess even the most basic
degree of fitness for ordinary use.
In opposition, Plaintiff again merely
cites to allegations in the FAC without an analysis nor rebuttal to Defendant’s
arguments.
Here, the court agrees with Defendant that Plaintiff ordered hot coffee
and got hot coffee such that the warranty tied to the hot coffee—that it
would be hot—was met.
Therefore, as this cause of action
also fails as a matter of law and not facts, the court sustains the demurrer
WITHOUT leave to amend.
Conclusion
All in all, Plaintiff appears
improper causes of action as her complaint sounds more in negligence than in
strict liability. Therefore, the entirety of the demurrer is sustained WITHOUT
leave to amend.