Moore v. P.F. Changs China Bistro

Filed 7/25/07 Moore v. P.F. Changs China Bistro CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

APPEAL from a judgment of the Superior Court of Los Angeles County, Judith Vander Lans, Judge. Affirmed.

Law Office of Ronald Grzywinski and Ronald Grzywinski for Plaintiff and Appellant.

Law Office of Keith W. Farley and Keith W. Farley for Defendant and Respondent.

Appellant Barbara Moore appeals from the trial courts grant of summary judgment in favor of respondent P. F. Changs China Bistro, Inc. (PFC) on her complaint for personal injury allegedly caused by an allergic reaction to a dish eaten at PFCs restaurant.^[1] We conclude that Moore failed to raise a triable issue of fact concerning the presence of the suspected allergen in the dish and affirm.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2005, Moore brought a complaint against PFC. The complaint alleged that on July 21, 2004, PFC served food tainted with shrimp to Moore, who was allergic to shellfish. As a result, appellant suffered a reaction, which led to serious injury.^[2]

In March 2006, PFC moved for summary judgment. In its moving papers and exhibits, PFC established the following: On July 21, 2004, at 11:00 a.m., Moore arrived at PFCs restaurant with her friend, Juanita Wilson. Moore informed the waitress that she was allergic to lobster and shrimp. Moore ordered two chicken dishes and beef with broccoli for herself; Wilson ordered a shrimp special. Moores dishes were brought to the table first. Moore started to eat the beef with broccoli. As soon as she tasted it, her mouth began to feel[] funny or tingle. Moore did not see or taste any shrimp, fish, or shellfish in her food.

Restaurant personnel called paramedics, who administered Benadryl. In addition, they transported Moore to a hospital, where she was intubated to keep her airway open.^[3] At the hospital, Moore denied being exposed to any known allergens. Hospital physicians diagnosed appellant as suffering from angioedema secondary to ACE inhibitor.^[4]

In its moving papers, PFC also set forth evidence to establish its general food handling practices at the restaurant in question during the relevant period.^[5] Beef and fish (including shellfish) served at the restaurant came from Metropolitan Distributing Company. Chicken came from Center Meat Company. Metropolitan Distributing Company and Center Meat Company cleaned and prepared the food items, and packaged them in separate bags. When received by the restaurant, fish was put in the freezer and beef and chicken in the refrigerator. Before being cooked, each item was prepared in its own area or station in the kitchen. Restaurant personnel used different colored cutting boards for each item: blue for fish, red for beef, yellow for poultry, green for vegetables and white for non-cooked items. The boards were kept in their own stations and were cleaned and sanitized after use.

When a patron ordered a specific dish, the items needed to prepare it were collected from their respective stations and taken to the cooking station where a chef cooked the dish in a wok. The cooked food was placed on a serving dish and kept on a hot shelf until served. Fish dishes were kept separate from beef and chicken dishes in the hot shelf area. Woks were cleaned after each use by scrubbing with water while being heated to 550 degrees Fahrenheit. Woks were cleaned again at the end of the day by being heated to an even higher temperature, scrubbed and dried. Dishes and utensils were run through an industrial washer twice after each use.

In her opposition to the summary judgment motion, Moore did not contest PFCs summary of the events of July 12, 2005 or its description of its normal food-handling practices. The only fact Moore contested was the diagnosis of her condition by hospital personnel. Her contrary evidence consisted of a declaration from M. Michael Glovsky, M.D., a physician board certified in the field of allergy and immunology. Dr. Glovsky stated he had reviewed Moores medical history and records, including records from her treating physician. Based on the records and her history of previously having had several less severe episodes of allergic reaction to shellfish/iodine, he opined that her angioedema was secondary to exposure to shellfish rather than the ACE inhibitor.

The court granted the motion for summary judgment. In response to counsels argument that Dr. Glovskys declaration was evidence that Moores condition was caused by eating a beef dish tainted with shrimp, the court noted that Dr. Glovsky failed to identify those portions of the medical records that support his . . . opinion. The court further noted that although Dr. Glovsky asserted the hospital misdiagnosed Moore, he d[idnt] really identify any evidence to support his basis for [his] assertion[].

DISCUSSION

I

Burden of Proof and Standard of Review

As the defendant, PFCs burden on summary judgment was to show that no cause of action in Moores complaint had merit. This can be accomplished by: (1) demonstrating that one or more elements of [each] cause of action cannot separately be established or (2) establish[ing] an affirmative defense to [each] cause of action. (Smith v. Wells Fargo Bank, N.A. (2005) 135 Cal.App.4th 1463, 1472; accord Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A defendant need not affirmatively negate an element of a cause of action if he or she can demonstrate that the plaintiff cannot establish at least one element of the cause of action [citation], which the defendant can do by showing that the plaintiff does not possess, and cannot reasonably obtain, needed evidence[.] (Smith v. Wells Fargo Bank., N.A., supra, 135 Cal.App.4th at p. 1473, quoting Aguilar v. Atlantic Richfield Co., supra, 25 Cal.App.4th at pp. 853-854.)

[O]nce a moving defendant has shown that one or more elements of the cause of action . . . cannot be established, the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts showing that a triable issue of material fact exists as to that cause of action . . . . [Citations.] (Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 476-477.) To successfully oppose summary judgment, [i]t is not enough to produce just some evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the party opposing the motion for summary judgment. (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098, 1105; accord Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108.)

On appeal after a motion for summary judgment has been granted, we review the record de novo, considering all the evidence set forth in the moving and opposition papers except that to which objections have been made and sustained. (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve doubts concerning the evidence in favor of the party opposing summary judgment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.) While [the moving party has] the burden of proving its right to summary judgment below, on appeal, [the opposing party], as the appellant, bears the burden of showing error. [Citation.] In the absence of such a showing, we presume the judgment is correct. [Citation.] (Frank and Feedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474; accord Claudio v. Regents of University of California (2005) 134 Cal.App.4th 224, 252.)

II

PFCs Negation of Element of Food Allergy Claim

In California, claims against a restaurant for serving otherwise wholesome food that could cause an allergic reaction in susceptible persons are governed by comment j to the Restatement Second of Torts section 402A. (Livingston v. Marie Callenders, Inc. (1999) 72 Cal.App.4th 830, 838; see Oakes v. E. I. Du Pont de Nemours & Co., Inc. (1969) 272 Cal.App.2d 645, 650 [allergic reaction to weed spray]; Anderson v. Owens-Corning Fiberglas Corp., supra, 53 Cal.3d at pp. 995-998 [confirming that California courts follow the principles set forth in section 402A].) Section 402A, which covers product liability, provides that where a product includes an ingredient that causes an allergic reaction, it may be considered defective if no warning was given and the defendant may be liable on a strict liability/failure-to-warn theory.^[6] The rule set forth in section 402A states that a warning is required when the product contains an ingredient to which a substantial number of the population are allergic; its danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product; and the seller has knowledge, or by the application of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the danger.^[7] (Rest.2d Torts, 402A, com. j, p. 353.) Thus, to support a claim for strict liability/failure-to-warn based on allergic reaction to a food item, the plaintiff must establish, in addition to causation and damages, that: (1) the defendants product contained an ingredient to which a substantial number of the population are allergic; (2) the ingredient is one whose danger is not generally known, or if known is one which the consumer would reasonably not expect to find in the product; and (3) the defendant knew or by the application of reasonable developed human skill and foresight should have know[n], of the presence of the ingredient and the danger. (Livingston v. Marie Callenders, Inc., supra, 72 Cal.App.4th at p. 839, quoting Rest.2d Torts, 402A, com. j, p. 353.)

The element essential to all of Moores claims at issue here is the presence or absence of the alleged allergen -- shellfish -- in the beef dish. As courts have recognized, establishing the presence or absence of a harmful substance in a restaurant dish can be problematic if the food itself is not available for analysis. (See, e.g., Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003, 1008; Wilson v. Circus Circus Hotels, Inc. (1985) 101 Nev. 751 [710 P.2d 77, 79]; Woolworth Company v. Garza (Tex. App. 1965) 390 S.W.2d 90, 93.) The presence of the injury-causing ingredient may be shown by circumstantial evidence. (Ibid.) However, under the generally accepted rule, [t]he unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff became sick after eating it. (Minder v. Cielito Lindo Restaurant, supra at p. 1008, quoting Frankes Inc. v. Bennett (1941) 201 Ark. 649 [146 S.W.2d 163, 164].) Such evidence merely shows a sensitivity of the plaintiff on the particular occasion and perhaps not even this because something else could well have brought about the reaction. (Woolworth Company v. Garza, supra at p. 93, quoting Keeton, Products Liability, 41 Tex. Law Review 855.) To be sufficient, the circumstantial evidence must exclude other extrinsic causes of the accident [or illness]. (Wilson v. Circus Circus Hotels, Inc., supra, at p. 79, quoting Vuletich v. Alivotvodic (Ill. App. 1979) 392 N.E.2d 663, 667.)

In Minder v. Cielito Lindo Restaurant, the Court of Appeal identified five categories of evidence helpful in proving the injurious nature of food ingested at a restaurant where the food is not available for scientific analysis: (1) evidence the food was outwardly deleterious; (2) evidence that others who ate the same food at approximately the same time as the plaintiff became similarly ill; (3) evidence that others who did not become ill ate everything the plaintiff ate except the suspect item; (4) evidence tending to exclude other causes of the plaintiffs illness; and (5) evidence of unsanitary conditions in the restaurants kitchen. (67 Cal.App.3d at pp. 1008-1010.) Moore conceded there was nothing outwardly deleterious about the dish; she neither saw nor tasted any seafood in it. Unlike Minder, this is not a food poisoning case. Accordingly, categories (1), (2) and (3) are not helpful.

With respect to categories (4) and (5), PFC established through its moving papers and exhibits its general procedures for food handling and the care restaurant personnel took to keep different types of food items separate. (See Brown v. General Foods Corp. (1978) 117 Ariz. 530 [573 P.2d 930, 934] [evidence of manufacturers quality control procedures constitutes circumstantial evidence tending to show improbability of contamination of food product alleged by plaintiff]; accord Hazelton v. Safeway Stores, Inc. (1987) 12 Kan.App.2d 377 [745 P.2d 309, 313-314].) It also established through the hospital records that the angioedema suffered by Moore was a reaction to the blood pressure medication she was taking at the time. Indeed, this was the diagnosis of three of the physicians who examined her while she was hospitalized. This showing was sufficient to demonstrate that a vital element of Moores claim could not be established and to shift the burden to Moore to prove the existence of a triable issue of fact concerning the presence of shellfish in her beef dish. (See Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 476-477.)

III

Inadequacy of Moores Evidence

Moore attempted to meet her burden by submitting Dr. Glovskys declaration concerning the etiology of her medical condition. Following a brief description of his credentials and the medical records reviewed, Dr. Glovsky expressed his opinion and the basis for it in a single sentence: [Moores] history of previously having had several less severe episodes of allergic reaction to shellfish/iodine, and the records reviewed by me provide the basis of my opinion that the cause of [Moores] admission to [the hospital] on July 21, 2004, was not as a result of suffering from angiodema [sic] most likely secondary to an ACE Inhibitor (Lotensin) as the [hospital] records suggest, but from angiodema [sic] secondary to exposure to shellfish at [PFCs restaurant].

In opposing summary judgment, [p]laintiffs cannot manufacture a triable issue of fact through use of an expert opinion with self-serving conclusions devoid of any basis, explanation, or reasoning. (McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at p. 1106; accord Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 108.) An expert declaration is of no evidentiary value where it is rendered without a reasoned explanation of why the underlying facts lead to the ultimate conclusion because an expert opinion is worth no more than the reasons and facts on which it is based. (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) When an expert can attest to nothing more than the possibility that the plaintiffs condition is indicative of the presence of a harmful ingredient in the defendants product, the plaintiffs case is not supported. (See, e.g., Minder v. Cielito Lindo Restaurant, supra, 67 Cal.App.3d at p. 1010 [where experts testimony indicated it was just as logical that plaintiffs condition resulted from a source other than food served in defendants restaurant, plaintiffs claim was not supported]; Rexall Drug Company v. Nihill (9th Cir. 1960) 276 F.2d 637, 644 [where plaintiff claimed her hair loss was due to deleterious ingredient in defendants product but opinions expressed by . . . medical witnesses were in the realm of possibility and not probability, plaintiff did not establish prima facie case]; see also Bushling v. Fremont Medical Center, supra, 117 Cal.App.4th 510 [where plaintiff awoke after surgery with chronic pain in his shoulder, court rejected opinions of expert physicians who assume[d] the cause from the fact of the injury and presented nothing more than a statement that the injury could have been caused by defendants negligence in one of the ways they specif[ied]]; Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 108 [The mere possibility of exposure does not create a triable issue of fact.].) An experts speculations do not rise to the status of contradictory evidence, and a court is not bound by expert opinion that is speculative or conjectural. (McGonnell v. Kaiser GypsumCo., supra, 98 Cal.App.4th at p. 1106.)

Other than the fact that Moore had suffered adverse consequences from shellfish in the past, Dr. Glovsky provided no basis, explanation or reasoning for his conclusion that Moores medical condition on July 21, 2004 was due to an allergic reaction to shellfish, as opposed to a side effect of blood pressure medication. He failed to explain why he believed his diagnosis of allergic reaction was more likely than the hospital physicians diagnoses of adverse reaction to medication. He did not, for example, discuss the nature, timing or duration of Moores symptoms or state why they were more or less indicative of the accuracy of one or the other diagnosis. He made no mention of the blood pressure medication or the amount of time Moore had taken it. Nor did he discuss the treatment administered to Moore or whether her reaction to it affected his opinion.^[8] In many respects, Dr. Glovskys declaration was similar to the expert declaration rejected by the court in McGonnell v. Kaiser Gypsum Co., supra, where summary judgment was based on lack of evidence that the plaintiff was exposed to the defendants asbestos products. The plaintiff submitted an expert declaration expressing the opinion that it was more likely than not the defendants products had been used at a specific job site. The opinion was purportedly based on the projects job specifications but the expert failed to specify how the specifications linked the defendants products to the project and the declaration, therefore, raise[d] more questions than it answer[ed]. (98 Cal.App.4th at p. 1106.) Dr. Glovskys opinion was similarly marred by a failure to explain his conclusion and why it was more likely than other, more innocent explanations for Moores condition. Although we give the party opposing summary judgment the benefit of every doubt, Dr. Glovskys declaration is insufficient to create a triable issue of fact concerning the presence of shellfish in the dish served to Moore.

IV

Res Ipsa Loquitur

Moore contends this is an appropriate situation for application of the doctrine of res ipsa loquitur. For that doctrine to apply, certain conditions must be met: (1) the accident must be of a kind which ordinarily does not occur in the absence of someones negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff. (Ybarra v. Spangard (1944) 25 Cal.2d 486, 489; accord Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.) Moore contends that the only way [she] could have had an allergic reaction at [PFCs] restaurant would have been to eat a non-shrimp dish that was tainted with shrimp. This presupposes that Dr. Glovskys opinion concerning the reason for her medical crisis on July 21, 2004 was sufficient to establish that Moores condition was precipitated by exposure to an allergen. For the reasons discussed, it was not. Accordingly, the accident in question was Moore becoming ill while eating at PFCs restaurant. As her illness could have been the consequence of many factors not attributable to PFC or the food it served, including her blood pressure medication, there is no basis for the res ipsa loquitur presumption. (See Minder v. Cielito Lindo Restaurant, supra, 67 Cal.App.3d at p. 1008 [prima facie case is not made merely by establishing that plaintiff became sick after eating at defendants restaurant].) Accordingly, the trial court did not err in refusing to apply it.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, J.

We concur:

EPSTEIN, P. J.

WILLHITE, J.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Property line Lawyers.

^[1] Changs is sometimes spelled without the apostrophe. We adopt the spelling used in PFCs brief.

^[2] The specific causes of action were labeled Breach of Warranty, Negligence, Strict Liability, and Negligence Per Se.

^[3] The leftover food was given to Wilson, who took it home and consumed it.

^[4] According to the hospital records, at the time of admission, Moore was taking Lotensin, an angiotensin converting enzyme or ACE inhibitor, for high blood pressure. Her chief symptom was described as a [s]wollen tongue. She was intubated for one day in order to keep her trachea open. During her stay at the hospital, she was examined by four different physicians. All referred to her condition as angioedema. One did not diagnose a reason for the condition. The other three concluded that it was caused by ACE inhibitor, two using the qualifier likely.

^[5] The information was supplied by Celso Campos, Executive Chef for the restaurant patronized by Moore on the day of her illness.

^[6] None of the causes of action in Moores complaint are entitled failure to warn. However, the claims for breach of warranty and strict liability include allegations that she informed PFC personnel of her allergy and that she did not know or have reason to know of the true condition of the food served to her. Failure to warn of the alleged presence of seafood in the dish can be inferred from these allegations. The complaint also included two causes of action based on negligence. Proof of negligence is not required to establish liability under a failure to warn theory. (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112, quoting Anderson v. Owens-Corning Fiberglas Corp. (1991) 53 Cal.3d 987, 1002-1003 [[I]n strict liability, as opposed to negligence, the reasonableness of the defendants failure to warn is immaterial . . . . [A] manufacturer could not escape liability under strict liability principles merely because its failure to warn of a known or reasonably scientifically knowable risk conformed to an industry-wide practice of failing to provide warnings that constituted the standard of reasonable care.].)

^[7] The Restatement Third of Torts: Products Liability contains similar language: The general rule in cases involving allergic reactions is that a warning is required when the harm-causing ingredient is one to which a substantial number of persons are allergic. . . . [] The ingredient that causes the allergic reaction must be one whose danger or whose presence in the product is not generally known to consumers. . . . When the presence of the allergenic ingredient would not be anticipated by a reasonable user or consumer, warnings concerning its presence are required. ( 2, com. k, p. 32.)

^[8] The record reflects that in addition to Benadryl, Moore was given Tagamet and prednisone.