Case Number: BC683769 Hearing Date: February 05, 2018 Dept: 47

Jalonie J. Kinard, et al. v. Smart & Final Extra, et al.

(1) DEMURRER TO COMPLAINT;

(2) MOTION TO STRIKE RE: COMPLAINT

MOVING PARTY: (1) & (2) Defendants The Whitewave Foods Company (erroneously sued as White Waves Food Company aka Sun Harvest Products) and Earthbound Farms LLC (erroneously sued as Earthbound Farms)

RESPONDING PARTY(S): (1) & (2) Plaintiff Jalonie J. Kinard

STATEMENT OF MATERIAL FACTS AND/OR PROCEEDINGS

Plaintiffs allege personal injury. By way of concurrently filed declarations, Plaintiffs allege that a rodent was found in a salad purchased on September 20, 2016.

Defendants The Whitewave Foods Company (erroneously sued as White Waves Food Company aka Sun Harvest Products) and Earthbound Farms LLC (erroneously sued as Earthbound Farms) demur to the Complaint and move to strike portions thereof.

TENTATIVE RULING

Defendants The Whitewave Foods Company (erroneously sued as White Waves Food Company aka Sun Harvest Products) and Earthbound Farms LLC (erroneously sued as Earthbound Farms)’s demurrer to the Complaint is OVERRULED as to Plaintiff Jalonie J. Kinard as to the First Cause of Action, and SUSTAINED without leave to amend as to the Second Cause of Action. As to Plaintiff Paula Kinard-Hawthorne the entire action is SUSTAINED without leave to amend, unless it is demonstrated that there is a reasonable probability that she has any viable cause of action in this case. Defendants’ motion to strike punitive damages is GRANTED without leave to amend.

Assuming leave to amend is denied, Defendants are ordered to answer the Complaint within 20 days. At the upcoming Case Management Conference, the parties should be prepared to address whether this case should be transferred to the limited jurisdiction court.

DISCUSSION

Demurrer

As an initial matter, the Court notes that there is no indication that Jalonie J. Kinard is an attorney. As such, she may not appear on behalf of Paula Kinard-Hawthorne. The Court notes that, because Paula Kinard-Hawthorne did not sign the opposition, she does not purport to appear on her own behalf. As such, the Court only consider Jalonie J. Kinard to have filed an opposition to the demurrer and motion to strike.

Meet and Confer

The Declaration of Fred R. Vasquez reflects that the meet and confer requirement set forth in CCP § 430.41 was satisfied.

Analysis

1. First Cause of Action (Negligence).

Defendants’ argument that Plaintiffs have failed to allege that Defendants breached any duty of care owed to Plaintiffs and that Defendants’ breach caused Plaintiffs’ alleged damages. As to Plaintiff Jalonie J. Kinard, this argument is not persuasive.

The existence of a legal duty is a question of law for the court. (Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, 237 [30 Cal. Rptr. 3d 145, 113 P.3d 1159].) “As this court has explained, ‘duty’ is not an immutable fact of nature ‘ “but only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection.” ’ [Citations.] In California, the general rule is that all persons have a duty ‘ “to use ordinary care to prevent others being injured as the result of their conduct. …” ’ (Rowland v. Christian (1968) 69 Cal.2d 108, 112 [70 Cal.Rptr. 97, 443 P.2d 561] (citations omitted); Civ. Code, § 1714.)” (Ballard v. Uribe (1986) 41 Cal.3d 564, 572–573, fn. 6 [224 Cal. Rptr. 664, 715 P.2d 624].) Foreseeability of harm is a “ ‘crucial factor’ ” in determining the existence and scope of that duty. (Delgado, supra, 36 Cal.4th at p. 237.)

John B. v. Superior Court (2006) 38 Cal.4th 1177, 1188-89.

It does not take a stretch of the imagination to find that persons who harvest, package and sell food have a duty to the consumer to ensure that dead rodents are not found in the food they eat. However, as to Plaintiff Paula Kinard-Hawthorne, this argument is persuasive. She allegedly only saw the dead rodent when Jalonie called her mother over to see. Only Jalonie suffered injury due to possible physical contact with the rodent’s disease from the alleged breach. Paula did not allegedly contact the rodent, but only saw it. The Court finds that Defendants owed a duty to Plaintiff Jalonie J. Kinard only, and allegedly breached that duty so as to cause her damages, but the same cannot be said as to Plaintiff Paul Kinard-Hawthorne. Plaintiff Jalonie is entitled to discover each Defendants’ role in the distribution process through discovery.

The demurrer to the first cause of action is OVERRULED as to Plaintiff Jalonie J. Kinard and SUSTAINED without leave to amend as to Plaintiff Paula Kinard-Hawthorne. Generally speaking, leave to amend must be allowed where there is a reasonable possibility of successful amendment. Goodman v. Kennedy (1976) 18 Cal.3d 335, 348. In this instance, however, Plaintiff Paula Kinard-Hawthorne must demonstrate this possibility at the hearing, otherwise no leave to amend will be given to her.

2. Second Cause of Action (Gross Negligence).

Generally, “[g]ross negligence is pleaded by alleging the traditional elements of negligence: duty, breach, causation, and damages. [Citation.] However, to set forth a claim for ‘gross negligence’ the plaintiff must allege extreme conduct on the part of the defendant.” (Rosencrans v. Dover Images, Ltd. supra, 192 Cal.App.4th at p. 1082.) To constitute gross negligence, misconduct must demonstrate “either a ‘“‘want of even scant care’”’ or ‘“‘an extreme departure from the ordinary standard of conduct.’”’ [Citations.]” (Santa Barbara, supra, 41 Cal.4th at p. 754.) Although gross negligence usually presents a question of fact (Hall v. Berliner (1937) 20 Cal.App.2d 193, 195 [66 P.2d 721]), in some circumstances its existence can be resolved as a question of law (Jones v. Wells Fargo Bank (2003) 112 Cal.App.4th 1527, 1541 [5 Cal. Rptr. 3d 835] [creating promissory note and forbearance agreement in manner that led to loss of appreciation in property value was not gross negligence]).

Frittelli, Inc. v. 350 North Canon Drive, LP (2011) 202 Cal.App.4th 35, 52 (bold emphasis added).

Generally speaking, the Court has no problem finding that persons who permitted packaged salads to reach the consumer with a dead rodent in it may be found be a jury to have engage in extreme conduct that demonstrates a “want of even scant care” or “an extreme departure from the ordinary standard of conduct.” Frittelli, supra, 202 Cal.App.4th at 52. This, of course, shall depends on the evidence as to how the rodent came to be placed in the packaged salad. It could have been through “gross negligence.”

However, the current Complaint is devoid of any allegations which could support “extreme conduct on part of the defendant” which could constitute “gross negligence.” Even when considering the declarations which are incorporated in the complaint, it appears that Defendants do attempt to take several reasonable attempts to avoid rodents becoming part of the packaged salads.

For the reasons discussed above re: the first cause of action, the demurrer to the second cause of action is SUSTAINED without leave to amend as to both plaintiffs until and unless either one of them could demonstrate a reasonable possibility of successfully amendment is shown.

Motion To Strike

Meet and Confer

The Declaration of Fred R. Vasquez reflects that the meet and confer requirement set forth in CCP § 435.5 was satisfied.

Analysis

Defendants’ request to strike the punitive damages claim is GRANTED without leave to amend, unless Plaintiffs can demonstrate the possibility of successful amendment.

There are insufficient facts pled whereby a trier of fact could find that Defendants acted with malice, oppression or fraud vis-à-vis Plaintiffs.

Civil Code § 3294(c) defines malice, oppression and fraud:

(1) ‘Malice’ means conduct which is intended by the defendant to cause injury to the plaintiff or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.

(2) ‘Oppression’ means despicable conduct that subjects a person to cruel and unjust hardship in conscious disregard of that person’s rights.

(3) ‘Fraud’ means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention on the part of the defendant of thereby depriving a person of property or legal rights or otherwise causing injury.

If leave to amend is denied, Defendants are ordered to answer the Complaint within 20 days. At the upcoming Case Management Conference, the parties should be prepared to address whether this case should be transferred to the limited jurisdiction court.

Defendants to give notice, unless waived.

IT IS SO ORDERED.

Dated: February 5, 2018 ___________________________________

Randolph M. Hammock

Judge of the Superior Court