Judge William A. Crowfoot, Case 21STCV06741 2023-03-10 Tentative Ruling

Judge: William A. Crowfoot, Case: 21STCV06741, Date: 2023-03-10 Tentative Ruling

On February 19, 2021, plaintiff Min Ge (“Plaintiff”) filed this action against defendant T & T Development, Inc. (“Defendant”). Plaintiff alleges that on or about August 10, 2019, Defendant operated a restaurant known as “Yunnan Restaurant” and prepared a meal for Plaintiff. Plaintiff claims that the food that was served contained a hard object like a stone.

On April 21, 2021, Defendant filed a cross-complaint for indemnity, apportionment, and declaratory relief against Roes 1 through 50.

On November 7, 2022, Defendant filed this motion for summary judgment or, in the alternative, summary adjudication as to each of Plaintiff’s three causes of action. The Complaint does not label each of the causes of action but Defendant states that they are for breach of implied warranty, negligence, and strict liability, respectively.

Defendant claims that Plaintiff cannot prevail on any of her causes of action because she cannot identify what object caused her purported injury. (Mot., 5:6-8.)

On or about August 10, 2019, Plaintiff was dining at Defendant's restaurant, located at 301 North Garfield Avenue, Suite B, Monterey Park, California 91754 (the "Restaurant"). (Def.’s Undisputed Material Fact (“UMF”) No. 1.) While at the Restaurant, Plaintiff ordered a vegetable dish (either cold potato or seaweed), a marinated tongue dish and a spicy fish dish. (UMF No. 3.) As Plaintiff was eating one of the vegetable dishes, Plaintiff alleges that she bit into a hard object. (UMF No. 4.)

In reviewing a motion for summary judgment, courts must apply a three-step analysis: “(1) identify the issues framed by the pleadings; (2) determine whether the moving party has negated the opponent’s claims; and (3) determine whether the opposition has demonstrated the existence of a triable, material factual issue.” (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 294.) “[T]he initial burden is always on the moving party to make a prima facie showing that there are no triable issues of material fact.” (Scalf v. D. B. Log Homes, Inc. (2005) 128 Cal.App.4th 1510, 1519.) A defendant moving for summary judgment or summary adjudication “has met his or her burden of showing that a cause of action has no merit if the party has shown that one or more elements of the cause of action . . . cannot be established, or that there is a complete defense to the cause of action.” (Code Civ. Proc., § 437c, subd. (p)(2).) To meet this burden of showing a cause of action cannot be established, a defendant must show not only “that the plaintiff does not possess needed evidence” but also that “the plaintiff cannot reasonably obtain needed evidence.” (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) A moving defendant need not conclusively negate an element of plaintiff’s cause of action, but it is insufficient for the defendant to merely point out the absence of evidence. (Id. at p. 854; Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The supporting evidence can be in the form of affidavits, declarations, admissions, depositions, answers to interrogatories, and matters of which judicial notice may be taken. (Aguilar, supra, 25 Cal.4th at p. 855.)

“Once the defendant . . . has met that burden, the burden shifts to the plaintiff . . . to show that a triable issue of one or more material facts exists as to the cause of action or a defense thereto.” (Code Civ. Proc., § 437c, subd. (p)(2).) The plaintiff may not merely rely on allegations or denials of its pleadings to show that a triable issue of material fact exists, but instead, “shall set forth the specific facts showing that a triable issue of material fact exists as to the cause of action.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Medical Center (2008) 159 Cal.App.4th 463, 467.)

In Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, the California Supreme Court addressed whether a plaintiff could bring a negligence claim against a restaurant when he sustained throat injuries from swallowing a one-inch chicken bone contained in a chicken enchilada. (Id. at p. 620.) He sued under theories of negligence, breach of implied warranty, and strict liability, asserting that: (1) the bone was negligently left in the enchilada and that the food was unfit for human consumption, and (2) he did not expect to find a bone and it is not common knowledge that there may be bones in chicken enchiladas. (Ibid.) The California Supreme Court permitted the plaintiff to pursue a negligence action, setting forth the following rule:

If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined unfit or defective. A plaintiff in such a case has no cause of action in strict liability or implied warranty. If, however, the presence of the natural substance is due to a restauranteur’s failure to exercise due care in food preparation, the injured patron may sue under a negligence theory.

Here, Defendant claims that Plaintiff cannot prevail on her negligence claim because she cannot identify the item which caused her injuries. (See Ladd v. County of San Mateo (1996) 12 Cal.4th 913, 917 [negligence claim requires the breach of a legal duty to be the proximate or legal cause of the resulting injury].) Defendant also argues that Plaintiff’s breach of implied warranty and strict liability claims fail because she must show that her injuries were caused by a foreign substance in the food she ate in order to prevail on a breach of implied warranty or strict liability claim but she does not know whether the object was natural or foreign.

Defendant cites to Plaintiff’s deposition transcript, in which she testifies that as she was eating one of the vegetable dishes, she bit into a hard object and then spat out the food and object into a napkin. (Mazarei Decl., Ex. A, 44:17-22, 45:3-5.) Defendant emphasizes Plaintiff’s testimony that she did not look at the object when she spit it out and did not save the items she spit into the napkin. (Mazarei Decl., Ex. A, 45:6-13, 45:17-19, 46:5-7.) Defendant also points out that Plaintiff testified that she does not know if Defendant ever looked for the object and that she never asked Defendant to identify the type or origin of the object. (Mazarei Decl., Ex. A, 45:20-22, 48:7-9.) Defendant concludes that because Plaintiff cannot identify what object caused her purported injuries, she cannot prove whether the object was natural or foreign, or whether Defendant failed to exercise due care in preparing the food. Defendant also concludes that if the object were natural to the foods Plaintiff ate, her claims for breach of implied warranty or strict liability would fail as a matter of law. (Mexicali Rose, supra, 1 Cal.4th at p. 633.)

The Court notes that in the remainder of Defendant’s Exhibit A, Plaintiff testified that she remembered ordering cold dishes of marinated tongue and either seaweed or cold potato, as well as spicy fish. (Mazarai Decl., Ex. A, 34:16-37:12.) Plaintiff did not recall which of the cold dishes she ate first but testified that after a few bites, she chewed on a hard object that she described as “rock” or “sand.” (Id., 39:8-12. 40:17-24, 43:5-14; 45:23-46:2.) She then experienced excruciating pain and asked for ice. (Id., 43:15-25.) She called her dentist, who was unavailable, before going to a dentist across the street from the restaurant. (Id., 44:1-14, 44:21-45:1.)

The Court finds that Plaintiff’s deposition testimony is insufficient to show that Plaintiff is unable to obtain evidence regarding the nature of the rocklike substance. Although Plaintiff does not know if Defendant’s employees looked at the food she spat in the napkin, Defendant does not introduce any evidence from its employees disclaiming such knowledge. Accordingly, the Court concludes that Defendant has not met its burden to show that no triable issues of fact exist.

Further, even if Defendant met its moving burden, the Court finds that Plaintiff sufficiently raised a triable issue of material fact. In opposition, Plaintiff argues that the dishes she ordered only contained soft foods and that her claims survive because a jury could infer from the ingredients listed in Defendant’s discovery responses that anything hard and rock-like would not be natural to those dishes. Plaintiff also states that an instruction of res ipsa loquitur at trial should be given because this kind of harm would not have occurred without negligence in the preparation of the food. (Opp., 5:9-14.)

Plaintiff attaches her special interrogatories and Defendant’s responses as Exhibit 2 and Exhibit 3 to the Declaration of Bruce E. Levenson. In her special interrogatories, she asked Defendant to list the ingredients in each of the cold dishes she possibly ordered or served (i.e., cold potato salad dish, cold beef, pork tongue, cold seaweed.) (Levenson Decl., Ex. B, SROG Nos. 46, 49, 52, 55.) For the cold potato salad, Defendant stated that the ingredients included small slices of potato, Chinese celery, vinegar, and salt. (Levenson Decl., Ex. C, Response to SROG No. 46.) The ingredients in the beef dish included “[b]eef (stomach); Chinese celery; cilantro; [and] sesame oil.” (Id., Response to SROG No. 49.) The pork tongue dish only included pork tongue and sesame oil, while the seaweed dish only included seaweed, cilantro, salt, and sesame oil. (Id., Response to SROG Nos. 52, 55.) Plaintiff also asked Defendant to identify the dish they believe Plaintiff was eating at the time and list the ingredients of that dish. (Levenson Decl., Ex. B., SROG Nos. 30-31.) Defendant identified the dish as a cold appetizer containing cucumber, pork tongue, and kidney. (Levenson Decl., Ex. C, Response to SROG Nos. 30-31.)

Plaintiff also submits the declaration of her treating endodontist, Maziyar Ebrahimi (“Dr. Ebrahimi”), who treated Plaintiff from August 30, 2019 to September 2, 2020, after she was referred by Philip Adams, D.D.S. (Ebrahimi Decl., 2:4-5.) Dr. Ebrahimi explains that his practice of endodontics involves treating problems affecting the inside of the tooth, such as root canals, and states that Plaintiff’s injuries were: (1) caused by trauma from biting on a hard object and (2) required two root canal treatments, a tooth extraction, an implant, and two crowns. (Id., 1:26-27, 2:7-12.) He rules out any fish bones as the cause of the type of occlusal trauma that Plaintiff sustained, stating that fish bones would not be capable of causing her severe injuries. (Id., 2:20-22.)

To prevail on her negligence claim, Plaintiff must show that there was a failure to exercise due care if the substance were natural to the foods that she consumed. Plaintiff’s testimony and Defendant’s list of ingredients in its discovery responses serve as evidence from which a jury could reasonably infer that the rocklike substance was not natural to the food. Even assuming arguendo that the substance was natural to the foods she consumed, the type of injuries sustained by Plaintiff is evidence from which a jury could conclude that its presence was indicative of a failure to exercise due care.

In light of the foregoing, the motion for summary judgment or, in the alternative, for summary adjudication is DENIED.

Parties who intend to submit on this tentative must send an email to the Court at ALHDEPT3@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.

William A. Crowfoot

Judge of the Superior Court