17-CIV-01123 SEAN STOUT, ET AL. VS. THE SWINGIN’ DOOR, ET AL.

SEAN STOUT THE SWINGIN’ DOOR
ALBERT L. THUESEN GEOFFREY T. MACBRIDE

MOTION FOR SUMMARY ADJUDICATION OF ISSUES TENTATIVE RULING:

The Court does not rule on Defendants’ objections. None of the challenged evidence was material to the Court’s disposition of the motion. (Code of Civ. Proc. Sect. 473c, subd. (q).)

Plaintiff’s objections to the portions of paragraphs 2 and 7 of the Declaration of Chapman are sustained. Plaintiff’s objection to paragraph 2 of Declaration of Macbride is sustained. (The Court notes, however, that for purposes of this motion, the Release is authenticated elsewhere, as are Chapman’s description of the Challenge.) The Court does not rule the remainder of Plaintiffs’ objections, which address evidence not material to the Court’s disposition of the motion. (Code of Civ. Proc. Sect. 473c, subd. (q).) Defendants’ motion for summary judgment is denied because it fails to dispose of all causes of action. Defendants’ alternative motion for summary adjudication is granted in part and denied in part as follows.

A. Primary Assumption of Risk.

Triable issues of fact exist about whether the doctrine of primary assumption of risk bars Plaintiffs’ claims.

1. The Spicy Burger Challenge Is, in Part, Recreational Activity.

The primary assumption of risk doctrine applies primarily in the cases of sports and recreation, but the doctrine is not limited to those contexts. The doctrine sometimes applies to inherently risky activity. (See, e. g., Priebe v. Nelson (2006) 39 Cal. 4th 1112 (kennel worker bitten by dog); Gregory v. Cott (2014) 59 Cal. 4th 996 (caregiver injured by Alzheimer’s patient).) The Court concludes that the Spicy Burger Challenge is not a sport. Participants in the Challenge do not compete against anyone, and there is little or no skill or training involved. The Court also concludes that the Challenge does not fall into the category of “risky activity” cases, which appear to be limited to occupations. The Court concludes that the Spicy Burger Challenge qualifies as a recreational activity.

It is undisputed that Stout went to the Swingin’ Door because he was hungry and wanted something to eat. (PMF 105-108.) It is also clear that Stout ordered the XXX Burger not just because he was hungry, but because of the challenge. (FAC para. 26 & 27 (Stout ordered the burger “Based on the representations” about the rewards for finishing the burger).)

Recreation is covered by the doctrine even when it is noncompetitive. (E. g., Amezcua v. Los Angeles Harley-Davidson, Inc. (2011) 200 Cal. App. 4th 217 (riding motorcycle in organized toy drive).) The doctrine has applied a “noncompetitive bicycle ride on public highways.” (Moser v. Ratinoff (2003) 105 Cal. App. 4th 1211, 1215 (waiver acknowledged that ride was extreme test of “physical and mental limits” and carries with it potential for death, serious injury and property loss”).) “An activity falls within that doctrine if the activity is done for enjoyment or thrill, requires physical exertion as well as elements of skill, and involves a challenge containing a potential risk of injury.” (Bertsch v. Mammoth Cmty. Water Dist. (2016) 247 Cal. App. 4th 1201, 1208 (skateboarding).)

Eating the XXX Burger to win the Wall of Flame picture and bumper sticker carries some indicia of recreational activity: it is done for thrill; it requires physical exertion and skill (such as forcing oneself to endure excruciating pain or resisting the urge to vomit); it involves a challenge containing potential risk of injury; it tests a person’s physical and mental limits. Further, the Challenge is not much different from a noncompetitive 5K “fun run” in which everyone receives a participation medal simply for finishing.

Plaintiff ate the burger in part for the reward, not simply because he was hungry. The Spicy Burger Challenge is a recreational activity that can be subject to the primary assumption of risk doctrine.

2. A Triable Issue of Fact Exists About Whether Defendants Increased the Inherent Risks of the Activity.

Where the doctrine applies to a “recreational activity,” a duty still exists not to act so as to increase the risk of injury over that inherent in the activity. (Avila v. Citrus Community College Dist. (2006) 38 Cal.4th 148, 162.) Plaintiff offers evidence that Defendants possibly increased the risk of harm from the XXX Burger:

a. Excessive Sauce. The recipe for the burger generally calls for about “an ounce, an ounce and a half,” just enough to “cover the patty.” The sauce is squirted from a squeezable ketchup bottle with its tip cut off and then smeared to cover the patty. (Chapman Depo. (Opp. Ex. MM) at 164:20 165:2; Johnson Depo (Opp. Ex. LL) at 134-135.) For Plaintiff’s burger, Defendants poured half a cup onto the burger, dripping it over the sides and onto the bun. (Stout Deposition (Opp. Ex. FF) at 100:2—101:16; (PMF 154 undisputed by Defendants.) This was four times the normal amount of sauce.

b. Water Instead of Dairy. Defendants acknowledge that water is not “a good idea” for people eating spicy food. (Symanski Depo. (Ex. JJ) at 196-197.) Defendant was to always offer patrons ice cream. (PMF 120; March 21, 2015 text message exchange between Symanski and Chapman (Opp. Ex. BBB). Instead, Defendant Symanski gave Plaintiff two pitchers of water. (PMF 166 & 167; Stout Depo (Ex. FF) at 103.) Defendants did not offer milk or ice cream to Plaintiff. (Stout Depo, at 103.) (PMF 121; Stout deposition (Ex. FF) at 70:27 – 72:11, 103:17-23, 113:12—23; Pettigrew deposition (Ex. GG) at 76:15-77:8, 106:22 – 107:4, 111:23 – 112:24.)

A reasonable jury could find that (1) applying four times the normal quantity of XXX hot sauce, (2) providing water to the person eating the hot sauce, and (3) not providing ice cream or other dairy could have increased the effects of the spicy food beyond normal and reasonably could have exacerbated Plaintiff’s vomiting and the resultant injury. The evidence is sufficient to create a triable issue of whether Defendants breached the duty to use due care not to increase the risks to a participant over and above those inherent in the (activity).” (Knight v. Jewett (1992) 3 Cal. 4th 296, 316.)

Because of the triable issues of material fact, the doctrine of primary assumption of risk does not support granting summary adjudication as to the first, second, sixth, seventh, eighth, or tenth causes of action. B. Triable Issues of Material Fact Exist About Whether the Release/Waiver Bars Plaintiffs’ Claims. A release “must be clear, unambiguous, and explicit in expressing the intent of the subscribing parties. . . . The determination of whether a release contains ambiguities is a matter of contractual construction. . . . If an ambiguity as to the scope of the release exists, it should normally be construed against the drafter.” (Benedek v. PLC Santa Monica, LLC (2002) 104 Cal. App. 4th 1351, 1356–1357.) Courts apply the rules governing contract interpretation; the rights of a third party beneficiary depend upon the intent of the contracting parties (Hess v. Ford Motor Company (2002) 27 Cal.4th 516, 524.)

1. The Release Fails to Identify the Parties to It.

“It is essential to the validity of a contract, not only that the parties should exist, but that it should be possible to identify them.” (Civ. Code Sect. 1558.) The rule applies to waivers and releases. (See, e. g., Westlye v. Look Sports, Inc. (1993) 17 Cal. App. 4th 1715, 1728.) The Release at issue identifies only Plaintiff Scott Stout and no other person. The name “The Swingin’ Door” appears, but only as part of pre-printed letterhead, not in the text of the Release or with any suggestion that The Swingin’ Door is a party to it.

Nothing on the document suggests that the letterhead necessarily implies that “WARAC Corporation” or “Warren Chapman” or “Eric Symanski” is a party. The Release does not identify any party other than Plaintiff. Outside the face of the Release, neither the moving nor the reply papers offer evidence to suggest that any Defendant WARAC is a party to the Release.

Even if the Court somehow construed that “The Swingin’ Door” on the letterhead is sufficient to identify Defendant WARAC Corp. as a party, no evidence suggests that Defendant Chapman also is a party to the Release, unless Defendant WARAC is an alter ego of Defendant Chapman, which no Defendant has ever admitted or contended. No evidence equates WARAC with Chapman.

Further, the appearance of “The Swingin’ Door” in the letterhead also does not suggest that Defendant Symanski is a party to the Release. He was the bartender, yet he is one of the moving parties asserting the Release as a defense. Nothing on the face of the Release, or in any evidence for this motion, suggests that bartender Defendant Symanski is a party to the Release.

Since a triable issue of fact exists about the identity of the contracting parties, the Release fails to satisfy the “validity” requirements for a contract. (Civ. Code sect. 1558.

2. The Release Is Ambiguous as to Who the Released Persons Are.

To determine whether the terms of a release provide that a party other than the named tortfeasor is discharged from liability, courts apply the rules governing contract interpretation. (Hess v. Ford Motor Company (2002) 27 Cal.4th 516, 524.) The rights of a third party beneficiary thus depend upon the intent of the contracting parties. (Id.)

The Release appears to be unlimited (releasing “any party”), but limitless releases of “all persons” are not always applied literally. (See, e. g., Neverkovec v. Fredericks (1999) 74 Cal. App. 4th 337 (triable issue of fact whether non-settling defendant was intended to be covered); Appleton v. Waessil (1994) 27 Cal. App. 4th 551 (same).) In contrast, when a plaintiff offers no evidence of intent to exclude a nonsettling defendant from release of “all persons,” the release can apply to that nonsettling defendant. (Rodriguez v. Oto (2013) 212 Cal. App. 4th 1020.)

Here, the Release is ambiguous on its face. Rather than release all “persons,” as in the cases cited above, the document purports to release all “parties.” One reasonable interpretation is that “all parties” means all “persons” everywhere,” whereas another reasonable interpretation is that it means all “parties” to the Release. The distinction is material. For example, if Defendant WARAC is the only party to the Release, then “all parties” could include Defendants Chapman and Symanski, or it could mean only WARAC Corporation, which is the only “party” to the Release, and vice versa.

Since an ambiguity exists, the Court must establish whether the parties’ intended “all parties” to mean everyone in the world, or merely everyone who is a party to the Release. Neither Defendants nor Plaintiffs cite evidence on this issue. A triable issue of material fact exists about whether “parties” means parties to the Release or all persons, regardless of whether they are contemplated by the Release.

3. The Release Is Ambiguous about Whether It Applies to the XXX Burger.

The Release states that it pertains to “my purchase of The Swingin’ Door extreme hot sauces.” If Plaintiff had purchased one of the sauces, then the Release would clearly apply. However, Plaintiff did not purchase a sauce; he purchased a burger that had some sauce on it. It is ambiguous whether a transaction to “purchasing hot sauces” includes purchase of a burger that has sauce on it. By way of example, when purchasing a hamburger that has lettuce, a reasonable person could conclude that the customer is not “purchasing lettuce” or “purchasing a bun” from the restaurant. Further, paragraph 3 states, “If I give the hot sauce as a gift . . . ,” which contemplates purchasing a bottle of sauce, not a burger. On the face of the Release, a triable issue exists about whether the Release relates to the XXX Burger or the “purchase of . . . hot sauces.”

A release must be clear, unambiguous, and explicit. (Benedek, supra.) To the extent the Release states that it pertains to “my purchase of The Swingin’ Door extreme hot sauces,” the contract is ambiguous about whether it applies to purchase of the XXX Burger. 4. Conclusion.

Triable issues of fact exist about whether the Release pertains to the eating of the XXX Burger, the identity of parties to the Release , and which, if any, Defendants are covered by the Release. The Release does not support summary adjudication as to the 1st, 2nd, 7th, 8th, and 10th causes of action.

C. Third, Fourth, and Fifth Causes of Action (Strict Liability, Breach of Warranty) The motion for summary adjudication is granted as to the third, fourth, and fifth causes of action. A plaintiff has no cause of action in strict liability or implied warranty if an injury-producing substance is natural to the preparation of the food served. (Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633.) Naturally occurring substances are those which an ordinary consumer should reasonably anticipate to encounter in a dish “and would naturally take his own precautions.”(Id. at 627.)

Defendants have met their initial burden of establishing that (1) the law precludes claims for strict liability and breach of warranty arising from consumption of prepared food when the injury-producing instrument was natural to the food being consumed. (chicken bone in a chicken enchilada) and (2) the injury-producing instruments here were all natural to the food being served (oils, powders, concentrates from peppers) (UMF 2; Declaration Chapman para. 3.) Plaintiffs attempt to dispute UMF 2, but the opposing evidence merely identifies additional ingredients not mentioned in the Chapman Declaration.

Plaintiff may assert a claim for strict liability or breach of warranty if the instrumentality was not natural. (Mexicali, supra.) Plaintiffs contend that the injury resulted from “unnatural chemicals,” meaning the “capsaicin isolated in a laboratory for use in the dried powder and extracts.” (Opp. at 28:12). Plaintiffs’ argument fails because Plaintiffs offer no evidence showing that the powders, oils, concentrates, extracts, or anything in them, is unnatural to the peppers from which they were purportedly derived.

Plaintiff’s Opposition relies on facts PMF 66-72. Those facts merely list the five ingredients in the XXX Sauce, the names of four of which imply that they are natural from peppers. The fifth ingredient, “Hunan wing sauce” is unclear as to its origin. However, Plaintiff makes offers no evidence or argument that the wing sauce contains any foreign materials.

Plaintiff Stout testified that the burger was not spoiled, and Plaintiffs claim that the XXX Sauce is adulterated only because of the large quantity and spiciness of sauce. (UMF 62; Stout Depo (Moving Ex. D) at 120, Pettigrew Depo (Mov. Ex. E) at 128; Stout Response to Interrogatories 34 & 37 (Ex. P) Plaintiff fails to demonstrate a triable issue of material fact concerning whether the XXX Sauce contained any foreign matter or any ingredient that was in “impure or noxious condition.”

D. Tenth Cause of Action (IIED) The motion is granted as to the tenth cause of action. For the tort of intentional infliction of emotional distress, “Whether conduct is outrageous is usually a question of fact.” (Ragland v. U.S. Bank Nat’l Assn., 209 Cal. App. 4th 182, 204.) However, a question of fact can become one of law when only one reasonable conclusion can be drawn from the undisputed foundational facts. (Tryer v. Ojai Valley School (1992) 9 Cal.App.4th 1476, 1480.)

The undisputed facts are that Plaintiff ordered the XXX Burger, and Defendants served it to him. Even under the facts proffered by Plaintiff — that Defendants poured excessive amount of sauce on the burger, gave him water, and failed to offer any dairy products – there is no showing that Defendants acted with an intent to cause Plaintiff serious injury.

It is understood that Defendants intended to cause Plaintiff some amount of harm, to the extent of causing extreme pain from eating the burger. However, the Court concludes that the conduct is not “extreme or outrageous,” since that is the very kind of harm and pain that Plaintiff requested. The evidence does not raise a triable issue of fact about whether Defendants intended to commit any act beyond what Plaintiff requested.

Plaintiff does not oppose the motion as to IIED. The undisputed facts compel the conclusion that Defendants’ acts were not so extreme and outrageous to form the basis of IIED.

E. Eleventh Cause of Action (Loss of Consortium) The motion is denied as to the eleventh cause of action. The motion is premised on the lack of merit to Plaintiff Stout’s negligence causes of action. As set forth above, the motion is denied as to the negligence causes of action. Therefore, the motion against the eleventh cause of action lacks a legal foundation

If the tentative ruling is uncontested, it shall become the order of the Court. Thereafter, Defendants shall prepare a written order consistent with the Court’s ruling for the Court’s signature, pursuant to California Rules of Court, Rule 3.1312, and provide written notice of the ruling to all parties who have appeared in the action, as required by law and the California Rules of Court