Filed 11/20/19 Spellman v. Chipotle Mexican Grill, Inc. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FOURTH APPELLATE DISTRICT

DIVISION THREE

CHRISTINA SPELLMAN,

Plaintiff and Appellant,

v.

CHIPOTLE MEXICAN GRILL, INC.,

Defendant and Respondent.

G056221

(Super. Ct. No. 30-2015-00775878)

O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, Glenn R. Salter, Judge. Reversed.

Dordick Law Corporation, Gary A. Dordick; California Lawyers Group, Michael S. Brown; and The Ehrlich Law Firm and Jeffrey I. Ehrlich for Plaintiff and Appellant.

Messner Reeves, Allan Clayborn, Kendra N. Beckwith; O’Melveny & Myers, Sabrina Strong, Dimitri D. Portnoi, Kyle Grossman; Kendra N. Beckwith and Michelle L. Harden pro hace vice for Defendant and Respondent.

* * *

Christina Spellman and two friends became ill shortly after eating chicken purchased at a Chipotle restaurant. While her two friends only suffered from a single bout of diarrhea, Spellman suffered from diarrhea, vomiting, chills and later developed serious physical ailments. Spellman sued Chipotle, alleging she suffered food poisoning after consuming the chicken bowl. Chipotle moved for summary judgment, arguing Spellman lacked evidence the chicken bowl caused her illness. The trial court agreed, concluding that no triable issue exists on the issue of causation because Spellman’s medical expert acknowledged he could not determine the specific pathogen that caused Spellman’s illness.

Spellman contends the trial court erred in granting summary judgment. She argues Chipotle failed to meet its burden to show she cannot establish causation at trial. Even had Chipotle met its burden, Spellman contends she produced evidence showing a triable issue exists on causation. We conclude a plaintiff in a food poisoning case need not determine the actual foodborne pathogen that caused the plaintiff’s illness to show a triable issue exists on causation. We further conclude a jury could infer causation from Spellman’s evidence. Accordingly, we reverse.

I

FACTUAL AND PROCEDURAL BACKGROUND

On March 9, 2015, Spellman filed a complaint against Chipotle, alleging causes of action for negligence, strict product liability, negligent product liability and breach of implied warranty. According to the complaint, on March 10, 2013, Spellman suffered food poisoning from eating at a Chipotle restaurant in Fullerton. Specifically, the complaint alleged that “[a]s a result of ingesting the unclean, tainted, dirty, adulterated, contaminated and diseased food stuffs at CHIPOTLE, Plaintiff suffered food poisoning and the ill-effects thereof, including, diarrhea, chills, pain and discomfort, vomiting, dehydration, colitis, and other serious physical ailments.”

Chipotle filed a motion for summary judgment, arguing Spellman’s claims lacked merit “since there is no triable issue of material fact both from a factual standpoint as well as a medical causation standpoint that the proximate cause of Plaintiff’s illness was the chicken bowl from Chipotle which she consumed on or about March 10, 2013.” Chipotle argued Spellman’s “theory of causation is fundamentally flawed” because her self-diagnosed theory that she suffered foodborne illness after contracting Clostridium difficile (C. diff) from eating a chicken bowl she purchased at Chipotle is biologically implausible. In addition, Chipotle argued Spellman could not prove she contracted a foodborne illness from her Chipotle meal because her symptoms occurred two hours later, which is too soon to suggest the illness was caused by the meal, and she tested negative for Salmonella, Campylobacter, or Shigella, which are common causes of foodborne illness.

In its Separate Statement of Undisputed Material Facts, Chipotle set forth the following facts. On March 10, 2013, Spellman and two friends purchased chicken bowls at a Chipotle restaurant in Fullerton. After eating the meal, Spellman’s two friends had a single episode of diarrhea. Neither friend sought medical treatment.

Within hours after eating her Chipotle meal, Spellman became ill. One friend testified Spellman complained her stomach was hurting within two hours of consuming her meal, and the other friend testified Spellman made her complaint one to four hours after eating the meal. Three days later, on March 13, 2013, Spellman went to an emergency room (ER), complaining of vomiting, diarrhea, vaginal bleeding and chills. Spellman self-diagnosed herself with a C. diff infection. Laboratory testing revealed Spellman had not contracted Salmonella, Campylobacter, or Shigella, which are common causes of foodborne illness. Spellman’s doctor diagnosed her with gastroenteritis (“stomach flu”) and discharged her.

On March 29, 2013, Spellman returned to the ER. Laboratory testing again revealed Spellman had not contracted Salmonella, Campylobacter, or Shigella. Spellman’s doctor diagnosed her with abdominal colic, nausea, irritable bowel syndrome, and hypertension.

On April 3, 2013, Spellman tested positive for C. diff. Subsequent notes in Spellman’s medical records indicate doubts about the C. diff diagnosis. For example, a note for Spellman’s August 21, 2013, admission questioned the diagnosis of C. diff and listed “a differential diagnosis of irritable bowel syndrome[,] inflammatory bowel disease, somatization disorder, Munchausen syndrome and malingering.”

In support, Chipotle submitted a declaration from Lee Harrison, M.D., a medical expert. Dr. Harrison stated that “[w]hile it is theoretically possible to become ill within a short period of time following a meal, in the vast majority of cases, the illness is actually related to food consumed 12 to 48 or more hours prior to the onset of symptoms. Particularly where the presenting symptom is diarrhea, the onset of symptoms is more than six hours and generally more than 12 hours after consuming the implicated food. With regards to the [C. diff] incubation period, it has not been well studied but is believed to be a median of 2-3 days after acquisition of the organism.” Dr. Harrison also noted”[t]here are no known cases in the United States in which C. difficile has been specifically linked to foodborne illness.” Based on the onset of Spellman’s symptoms and her negative test for Salmonella, Campylobacter and Shigella, Dr. Harrison opined “there is no evidence that [Spellman’s illness] was caused by food she consumed from Chipotle on March 10, 2013.” He also opined the Chipotle meal “did not, to a probability, cause the C. difficile detected in April 2013.”

Spellman opposed the motion for summary judgment, arguing Chipotle failed to meet its burden to show that Spellman could not establish she suffered a foodborne illness from eating the chicken bowl she purchased at Chipotle. Spellman noted that Chipotle’s expert Dr. Harrison acknowledged it was possible to become ill within hours following consumption of a tainted meal, and Harrison’s declaration failed to negate Spellman’s general allegations that Chipotle served her “contaminated diseased food.” Alternatively, Spellman argued that even if Dr. Harrison’s opinion satisfied Chipotle’s burden, Spellman could meet her burden to show a triable issue exists. Spellman asserted that a trier of fact reasonably could infer the Chipotle chicken bowl she consumed caused her illness because: (1) a cluster of three individuals became ill a few hours after consuming the chicken bowls; (2) none recalled eating anything else before becoming ill; (3) the onset of their illness is consistent with exposure to toxins produced by a number of foodborne bacteria; and (4) one individual found a strand of hair in one of the chicken bowls, indicating at least one meal was contaminated.

In a supporting declaration, Jeffrey Eliot Galpin, M.D., opined that “it was more probable than not that a cluster of three individuals, including . . . Spellman and her two companions, . . . contracted gastroenteritis as a direct and proximate result of their consumption of harmful food products purchased from the Chipotle restaurant . . . on or about March 10, 2013.” After noting “there is no way to determine now exactly which toxin or pathogen caused gastroenteritis in this cluster of three young women,” Dr. Galpin further opined that, “to a reasonable degree of medical probability,” that the quick onset of symptoms was consistent with a number of foodborne toxin-producing bacteria, including Staphylococcal aureus, Baccillus cereus and some strains of Campylobacter and E. Coli. Dr. Galpin opined that Spellman’s laboratory testing had “very limited relevance in determining the cause of Plaintiff’s gastroenteritis following the consumption of the Chipotle food product” because no information was provided about what bacterial strain was tested.

Dr. Galpin explained the disparity in illness between Spellman and her two companions likely resulted from the medication Spellman was taking for preexisting medical conditions which led to development of an “abnormal flora in her bowel” that made her “an ideal candidate for development of a superinfection from something like C. difficile.” He further explained that “the Chipotle-related gastroenteritis created a material imbalance in [Spellman’s] bowel flora, which made her more vulnerable to C.Diff-type infections and compromised her ability to absorb essential nutrients and vitamins from the foods she was eating.” The deficient absorption caused Spellman’s severe symptoms. Dr. Galpin acknowledged that “[t]here is no definitive way to say, one way or another, whether Plaintiff contracted C. diff from the Chipotle food product,” although “[i]t is certainly possible.”

In reply, Chipotle argued that Spellman cannot show causation because her only evidence is that the gastroenteritis occurred after consuming the Chipotle meal, which is insufficient as a matter of law. Chipotle noted that because Spellman’s friends only had a single bowel movement following consumption of the Chipotle meals, they did not have diarrhea, which is defined for foodborne illness epidemiologic purposes as three or more bowel movements within 24 hours. Chipotle further noted the chicken bowl was never tested, and that Spellman never tested positive for any foodborne pathogen.

At the hearing on Chipotle’s summary judgment motion, the trial court expressed concerns that Dr. Galpin’s declaration failed to “cover all of the facts in this particular case.” Specifically, Dr. Galpin did not show a link between the gastroenteritis and the Chipotle food product. The court continued the matter to allow each party to submit additional declarations.

Spellman submitted a declaration from L. Scott Donnelly, a food safety consultant, declarations from her two friends, and a supplemental declaration from Dr. Galpin. Based on his review of Chipotle’s food preparation practices, which Chipotle described in its 2012 Annual Report and Proxy Statement, Donnelly opined that “the foods prepared in Chipotle restaurants in or about March of 2013 were of much higher risk than other quick serve type of restaurants” for several reasons. First, “the lack of centralized kitchen/cooking facility” left food safety oversight to individual restaurants which can find it difficult due to high employee turnover. Second, the considerable amount of employee interaction with the food increased the risk of contamination by employees. Finally, the temperature control required for cooking cold or raw food to the correct temperature increased the risk of creating a favorable environment for foodborne pathogen. Donnelly noted the Food and Drug Administration (FDA) has stated that Staphylocus aureus outbreaks have been linked to foods that require a lot of handling or were not kept at the proper temperatures. Donnelly further noted the Orange County Health Agency found the Fullerton restaurant at issue did not maintain proper temperature for various food products during inspections on June 12, 2012, December 3, 2012, May 20, 2013, and October 23, 2013.

The declarations of Spellman’s two friends stated that on March 10, 2013, they were studying with other students on campus at the student union. At lunchtime, her two friends went off campus to the Chipotle restaurant together with Spellman. The women each ordered a chicken bowl with rice and various vegetables to go, and the Chipotle workers prepared the orders one right after another. They ate the meal at the student union on campus and later that afternoon Christina complained that “her stomach wasn’t feeling very good.” Later that evening the three women complained to each other that they had experienced diarrhea. No other study participant complained of illness or diarrhea.

In Dr. Galpin’s supplemental declaration, he noted Chipotle has acknowledged in its 2013 and 2014 Annual Reports that it is at a higher risk of foodborne illness outbreaks than some competitors because of its standardized food preparation methods. Dr. Galpin also noted the food safety violations at the subject Fullerton restaurant were documented in June 2012, December 2012, May 2013, and October 2013. The May 2013 violation involved cooked chicken being stored at 114º F, more than 20 degrees cooler than the safe hold temperature for hot food items. Dr. Galpin identified nine potential pathogens that could cause the symptoms suffered by Spellman and her two friends after consuming the Chipotle food chicken products, and explained that some of these pathogens “grow well” in hot foods held below 135º F.

Although Dr. Galpin could not identify the specific pathogen that affected Spellman, he stated it was not unusual for the exact pathogen to remain unidentified because often, “by the time that testing is performed on an individual suspected of food poisoning, the pathogen has already left that person’s system, leaving behind the damage wrought by the infection.” Dr. Galpin explained the Centers for Disease Control (CDC) identifies a foodborne illness outbreak as “an incident in which two or more persons experience a similar illness resulting from the ingestion of a common food,” and he opined that the situation involving Spellman and her two friends suffering diarrhea following consumption of chicken bowls met this definition. Dr. Galpin opined that “[t]o a high degree of medical certainty, Christina Spellman [and her two friends] developed gastroenteritis, on the evening of March 10, 2013[,] as a result of consuming a harmful food product from the Chipotle restaurant in Fullerton.”

The trial court granted Chipotle’s summary judgment motion because it concluded that Spellman failed to show “a causal link between a ‘particular kind of food positioning involved’ and a ‘particular unsanitary condition found at the restaurant.’” The court found that Dr. Galpin “cannot state with any degree of medical probability the particular kind of food poisoning involved.” It determined that although Dr. Galpin identified potential pathogens, he did not say “that these possible pathogens were the cause, but only that they could have been; the physical symptoms she suffered are typically related with these pathogens.” As to the fact that Spellman’s friends became ill, “[a]ssuming this constitutes a cluster . . . , [Dr. Galpin] still cannot say, with any degree of medical probability, what the particular kind of food poisoning was. And he concedes he doesn’t know.” Finally, as to the food safety violations, the court determined “there is no evidence these procedures and methods were in place or had been used on the food (i.e., the restaurant’s chicken supply).”

 

II

DISCUSSION

A motion for summary judgment is properly granted “‘if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to judgment as a matter of law.’” (Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, 813.) “The moving party bears the burden of showing the court that the plaintiff ‘has not established, and cannot reasonably expect to establish, a prima facie case. . . .’ [Citation.]” (Miller v. Department of Corrections (2005) 36 Cal.4th 446, 460.) “We review summary judgment appeals by applying the same three-step analysis applied by the trial court: First, we identify the issues raised by the pleadings. Second, we determine whether the movant established entitlement to summary judgment, that is, whether the movant showed the opponent could not prevail on any theory raised by the pleadings. Third, if the movant has met its burden, we consider whether the opposition raised triable issues of fact.” (Hawkins v. Wilton (2006) 144 Cal.App.4th 936, 939-940.) “‘Where the evidence presented by defendant does not support judgment in his favor, the motion must be denied without looking at the opposing evidence, if any, submitted by plaintiff.’ [Citation.]” (Id. at p. 940.)

“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. [Citation.]” (Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) “Because a summary judgment denies the losing party its day in court, we liberally construe the evidence in support of that party and resolve doubts concerning the evidence in that party’s favor.” (Creekridge Townhome Owners Assn., Inc. v. C. Scott Whitten, Inc. (2009) 177 Cal.App.4th 251, 255.)

Here, we must decide what evidence is sufficient to raise a triable issue on causation in a food poisoning case. Relying on Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187 (Sarti), Chipotle contends Spellman must show a specific “link between the particular kind of food poisoning . . . and [the] particular unsanitary condition at the restaurant.” (Id. at p. 1195, italices added.)

In Sarti, the plaintiff ate a raw tuna appetizer at a restaurant. (Sarti, supra, 167 Cal.App.4th at p. 1191.) The next day, the plaintiff became ill and after several days had to be hospitalized in intensive care. The doctor determined the plaintiff ingested campylobacter bacteria, a pathogen not found in raw tuna, unless it had been cross-contaminated by raw chicken, where bacteria are common. (Ibid.) The Orange County Health Department issued a “‘food borne illness’ report dated . . . a little less than a month after the meal. The report identified four practices at [the restaurant] that could lead to cross-contamination. Specifically: Wipe-down rags were not being sanitized between wiping down surfaces. There was also an insufficient amount of sanitizer in the dishwasher. Chicken tongs were sometimes used for other food. . . . Raw vegetables were stored under ‘raw meat’ (the expert testifying did not say what kind of raw meat), so that a drop of raw meat juice might get on the vegetables. There was also testimony that the waiter who served Sarti had used a wet, unsanitized rag stored underneath the bar to wipe down Sarti’s table.” (Ibid.)

After the jury found in favor of the plaintiff, the trial court granted judgment notwithstanding the verdict, concluding the plaintiff failed to show causation as a matter of law. We determined the plaintiff had shown causation and therefore reversed the judgment, explaining: “[T]here was expert testimony expressly making the link between the particular kind of food poisoning involved (campylobacter) and the particular unsanitary conditions found at the restaurant—cross-contamination from raw chicken. An expert for Sarti, Dr. Andrew Kassinove, testified that anything that might have touched something that touched raw chicken would be cross-contaminated. Particularly given the lack of proper sterilization in the dishwasher and the waiter’s constant use of an unsterilized wipe down rag, a reasonable jury could infer either that a rag used to wipe down a raw chicken board was used to wipe down a vegetable or tuna board, or, alternatively, that a drop or two of raw chicken juice may have leaked onto some of the vegetables stored beneath it.” (Sarti, supra, 167 Cal.App.4th at p. 1207.)

Chipotle argues it met its burden of demonstrating an absence of causation evidence because its medical expert “Dr. Harrison opined twice to a reasonable degree of medical and epidemiological certainty, that it was ‘not biologically plausible for Plaintiff to have contracted C. diff[ ] or a foodborne illness from her meal at Chipotle.’” Spellman contends Dr. Harrison’s declaration was factually limited to C. diff and the trial court erred in overruling her objections the declaration lacked foundation and was speculative. However, Dr. Harrison’s declaration was not limited to C. diff. The declaration noted that Spellman tested negative for three common causes of foodborne illness, and it explained the quick onset of diarrhea was not consistent with foodborne illness because “the onset of [diarrhea] symptoms is more than six hours and generally more than 12 hours after consuming the implicated food.” Dr. Harrison’s opinion on causation is not speculative and is based on an adequate foundation. The trial court did not abuse its discretion in overruling Spellman’s objections to the declaration.

Moreover, Dr. Harrison’s declaration was sufficient to satisfy Chipotle’s burden to show Spellman lacked causation evidence. As the Sarti court noted, the basic elements of proof in a food poisoning case are essentially those of any personal injury action. (Sarti, supra, 167 Cal.App.4th at p. 1202.) “The law is well settled that in a personal injury action causation must be proven within a reasonable medical probability based upon competent expert testimony.” (Jones v. Ortho Pharmaceutical Corp. (1985) 163 Cal.App.3d 396, 402.) Dr. Harrison’s opinion it was biological implausible for Spellman or her friends to have contracted a foodborne illness, based in part on the quick onset of symptoms, constituted evidence that Spellman could not prove causation to a reasonable degree of medical probability. Thus, the burden shifted to Spellman to present evidence showing a triable issue exists on causation.

Chipotle contends that Sarti compels Spellman to produce evidence of the specific pathogen involved, the specific unsanitary condition at Chipotle on March 10, 2013, and the link between the specific pathogen and the specific unsanitary condition. We disagree. As Sarti notes, although a legal treatise stated that the “‘ideal factual situation’” to prove food poisoning would involve four elements — simultaneous illness of a group of people who eat the same food at the same time, all “‘patients’” manifesting classic food poisoning symptoms, prompt investigation of suspect food, and “‘microscopic examination’” of that food — the same treatise recognized that the ideal situation will not always present itself to the court because often the plaintiff will have recovered to the point where the pathogenic bacteria cannot be identified and the food is not available for examination. (Sarti, supra, 167 Cal.App.4th at p. 1202.) But neither the treatise nor Sarti declared a plaintiff could not recover in the nonideal situations. Indeed, Sarti held “food poisoning cases are governed by the same basic rules of causation that govern other torts cases.” (Id. at p.1190.) Thus, a plaintiff need only produce substantial evidence from which a reasonable jury can infer causation.

Here, the complaint alleged that Spellman suffered “diarrhea, chills, pain and discomfort, vomiting, dehydration, colitis, and other serious physical ailments” “[a]s a result of ingesting the unclean, tainted, dirty, adulterated, contaminated and diseased food stuffs at CHIPOTLE.” Spellman therefore could prove causation if she presented evidence showing a link between her particular illness (gastroenteritis) and Chipotle’s wrongful conduct, such as improper handling of food used to make the chicken bowl she consumed. A reasonable jury could conclude the symptoms Spellman and her two friends suffered after eating the chicken bowls are consistent with foodborne illness. Dr. Galpin opined that the situation involving Spellman and her two friends met the CDC’s definition of a foodborne illness outbreak, which is defined as “an incident in which two or more persons experience a similar illness resulting from the ingestion of a common food.” (See also Sarti, supra, 167 Cal.App.4th at p. 1202 [ideal factual situation in a food poisoning case includes “simultaneous illness of a group of people who eat the same food at the same time, [and] all ‘patients’ manifesting classic food poisoning symptoms”].)

Dr. Galpin also identified several pathogens that could have caused Spellman’s gastroenteritis. Spellman presented evidence that one or more of these pathogens could have be present in the chicken bowl she consumed on March 10, 2013, because (1) Chipotle’s standardized food preparation methods presents a higher risk for illness outbreaks than some other fast food restaurants and (2) the same Fullerton restaurant violated safe food holding standards both before and after the incident. (Cf. Sarti, supra, 167 Cal.App.4th at p. 1191 [postincident report may be used to infer the food safety violations on date of incident].) The violations resulted in an ideal growing environment for the specifically identified pathogens.

Based on the evidence and Dr. Galpin’s declaration, a reasonable jury could infer causation. Specifically, a jury could infer that Chipotle’s failure to maintain proper food holding temperatures for cooked chicken or other food resulted in the growth of a pathogen on the food used to make Spellman’s chicken bowl and Spellman’s consumption of that pathogen-infested chicken bowl resulted in her gastroenteritis. Although there were several potential pathogens, this fact is not fatal to a causation finding because the jury could infer causation based on any number of reasonable hypotheses. (Cf. Sarti, supra, 167 Cal.App.4th at p. 1207 [the jury reasonably could infer cross-contamination occurred under any means supported by the evidence].) Because a jury reasonably could find causation, Spellman has shown a triable issue exists as to causation. The trial court therefore erred in granting summary judgment.

 

III

DISPOSITION

The judgment is reversed. Spellman is entitled to her costs on appeal.

ARONSON, ACTING P. J.

I CONCUR:

GOETHALS, J.

O’LEARY, J., Dissenting.

“Just because you get sick soon after eating at a restaurant doesn’t prove bad food or some other contamination at the restaurant caused it. Any other rule would be untenable, since it would make restaurants de facto health insurers of their customers.” (Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1196 (Sarti).) I respectfully dissent from my colleagues’ decision to reverse the trial court’s ruling. I would affirm the judgment because no triable issue exists on the issue of causation.

I agree with my colleagues that a plaintiff in a food poisoning case need not always determine the precise foodborne pathogen that caused his or her illness. However, in this case, Christina Spellman underwent extensive testing for common foodborne illnesses at the emergency room. Multiple tests for shigella, salmonella, and campylobacter were all negative. There simply was no reliable evidence Spellman’s symptoms were a result of any foodborne pathogen.

The parties engaged in discovery for approximately two and one-half years. Plaintiff asserted in her verified discovery responses that she was diagnosed with C. diff after eating her Chipotle chicken bowl, and that her diagnosis was what ultimately led to

her damages. Spellman argued her liability theory was “that she contracted gastroenteritis from a harmful chicken product,” and this compromised her “already-fragile bowel ecosystem[.]” This compromise caused several reactions, she claimed, including the C. diff infection. Chipotle argued there was “no triable issue of material fact both from a factual standpoint as well as a medical causation standpoint that the proximate cause of [Spellman’s] illness was the chicken bowl from Chipotle.”

Spellman’s retained medical expert, Dr. Jeffrey Galpin, opined in his supplemental declaration that Spellman and her two friends had “contracted gastroenteritis on the evening of March 10, 2013, as a result of their consumption of a harmful food product from Chipotle.” Galpin did not specifically link the alleged gastroenteritis to Chipotle. Instead, he offered two different hypotheses. First, he claimed it was “caused either by the typical pathogens,” of which he identified a laundry-list of nine potential “typical pathogens,” none of which were included in the emergency room screening for food illnesses. Second, he claimed it was other pathogens “such as one of [sic] following with early but broad ranged signs and symptoms” and identified an additional three potential pathogens.

The trial court properly rejected Spellman’s theory the mere possibility that “possible toxins or bacteria . . . could have been” present at Chipotle, combined with the fact that Spellman’s physical symptoms “are typically related with these pathogens” created a reasonable inference from which causation could be inferred. While Spellman identified several general procedures and sanitizing methods that were improper at the Fullerton Chipotle and nationwide, she failed to produce any evidence that those procedures and methods were in place on or about the day she ate at Chipotle. The only violation that occurred close in time to the March 10, 2013, incident was a May 20, 2013, violation regarding chicken storage temperatures—71 days after Spellman ate there.

The trial court properly recognized foodborne illness cases are “governed by the same basic rules of causation that govern other tort cases.” Reviewing a grant of summary judgment, we consider all the evidence in the moving and opposing papers, except evidence to which objections were made and properly sustained, liberally construing and reasonably deducing inferences from appellant’s evidence, and resolving any doubts in the evidence in appellant’s favor. (Code Civ. Proc. § 437c, subd. (c).) While reasonable inferences are available to show causation, “[w]hat is a reasonable inference is where it gets tricky.” “‘Speculation . . . is not evidence’ that can be utilized in opposing a motion for summary judgment. [Citations.]” (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 99; see also Joseph E. Di Loreto, Inc. v. O’Neill (1991) 1 Cal.App.4th 149, 161 [summary judgment opposition based on inferences “must be reasonably deducible from the evidence, and not such as are derived from speculation, conjecture, imagination, or guesswork”].)

The trial court properly concluded Spellman’s evidence in opposition to Chipotle’s summary judgment motion was insufficient to demonstrate the existence of a triable issue of material fact. The crux of Spellman’s argument on appeal is that Galpin’s declaration was sufficient to make a prima facie showing of a triable issue of fact on the issue of causation. Galpin opined that: a “cluster” of three friends became ill within a few hours of eating at Chipotle; one of the friends found a black hair in her food; none of these friends ate anything between the time they ate at Chipotle and got sick; and the onset of symptoms Spellman experienced is consistent with exposure to numerous types of foodborne bacteria. Galpin’s assertions fail to support Spellman’s inferences.

Spellman is bound by Sarti’s requirement that her expert make the “link between the particular kind of food poisoning involved” and “the particular unsanitary conditions found at the restaurant.” (Sarti, supra, 167 Cal.App.4th at p. 1207.) This requirement of causation is basic to any tort claim. In Sarti, a county health department report from less than a month after the meal identified four specific practices that could lead to cross-contamination and cause the identified foodborne illness. (Sarti, supra, 167 Cal.App.4th at p. 1196.) Galpin’s declaration stands in stark contrast to the expert evidence in Sarti. The expert in Sarti made the link between the particular kind of food poisoning involved (campylobacter) and the particular unsanitary condition (cross contamination from raw chicken) that caused plaintiff’s injury. (Id. at p. 1207.) Spellman was unable to show (1) she contracted a particular foodborne illness, or even narrow the foodborne illness down from a dozen, or (2) a particular unsanitary condition existed at the Fullerton Chipotle at or near the time of her symptoms that could have caused her alleged illness. Without establishing either of these factors, no inference can be reasonably drawn that Chipotle’s acts or omissions were a substantial factor in bringing about Spellman’s injury.

First, Spellman produced no reliable evidence she contracted a foodborne illness. She tested negative multiple times for common causes of foodborne illness and conceded her food was never tested. Galpin failed to state to any degree of medical probability Spellman contracted a particular pathogen, instead he simply gave a laundry list of potential bacteria and toxins.

Second, even if Galpin’s declaration was sufficient to establish Spellman contracted a particular foodborne illness, the declaration fails to link that illness to a particular unsanitary condition at the Fullerton Chipotle that could have caused it. Galpin relied on food safety expert L. Scott Donnelly’s declaration that the Food and Drug Administration has stated staphylocus aureus outbreaks have been linked to food not kept at proper temperature. Galpin also noted he read several articles concerning foodborne illness outbreaks in Chipotles in other states between 2008 and 2017. However, Donnelly failed to make any connection between out of state foodborne illness outbreaks in other Chipotles over a nine-year period to any conditions purportedly existing at the Fullerton Chipotle on March 10, 2013.

Donnelly’s declaration and the articles Galpin read are not facts from which a reasonable inference can be drawn. Specifically, there was no inference shown that chicken used in Spellman’s meal was stored at an improper temperature on or about March 10, 2013, and this was the cause of Spellman’s injury. Spellman’s attempt to establish a triable issue as to causation was based on speculation, conjecture, and inferences unsupported by relevant facts. A mere possibility of causation is insufficient for Spellman to sustain her burden.

Chipotle properly demonstrated Spellman lacked evidence to prove a factual basis for causation. The trial court’s entry of summary judgment was proper.

O’LEARY, P. J.