Case Number: BC686784 Hearing Date: May 06, 2019 Dept: 4B

[TENTATIVE] ORDER RE: DEEFENDANT’S MOTION FOR SUMMARY JUDGMENT, OR IN THE ALTERNATIVE, SUMMARY ADJUDICATION

I. INTRODUCTION

On December 14, 2017, Tina Shih (“Plaintiff”) filed this action against Defendant Starbucks Corporation (“Defendant”) for products liability and general negligence relating to a June 14, 2016 incident where hot water spilled onto Plaintiff’s thighs. Defendant moves for summary judgment, or in the alternative, summary adjudication.

II. FACTUAL BACKGROUND

On June 14, 2016, Plaintiff and her friend, Yvonne, visited a Starbucks Coffee store in Arcadia, California. (Undisputed Material Fact “UMF” No. 1.) Both Plaintiff and Yvonne ordered drinks of hot tea. (UMF Nos. 3, 4.) Yvonne sat down at a table while Plaintiff waited for the drinks. (UMF No. 5.) After the drinks were ready, Plaintiff retrieved them from the counter. (UMF No. 6.) Both drinks were double-cupped and covered with a lid and neither drink had a sleeve. (UMF Nos. 7, 8.) Plaintiff observed the cups were very hot and walked slowly from the pick-up counter to the table because the drinks were extremely hot. (UMF Nos. 9, 11.) Plaintiff set the drinks on the table and when the two were seated, Plaintiff removed the lid from her cup. (UMF Nos. 12, 13, 16.)

Plaintiff wanted to take a sip of her drink and bent over towards the cup, approaching it with her mouth, and pushed her chair out at the same time. (UMF No. 22.) As she bent to reach the cup with her mouth, she pushed her chair back more than anticipated and to not lose balance, Plaintiff grabbed onto the table and the drink spilled. (UMF No. 23.) Plaintiff’s drink spilled after she grabbed onto the table to prevent herself from losing balance. (UMF No. 25.)

III. LEGAL STANDARDS

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.)

“A party may move for summary adjudication as to one or more causes of action within an action, one or more affirmative defenses, one or more claims for damages, or one or more issues of duty, if that party contends that the cause of action has no merit or that there is no affirmative defense thereto, or that there is no merit to an affirmative defense as to any cause of action, or both, or that there is no merit to a claim for damages . . . or that one or more defendants either owed or did not owe a duty to the plaintiff or plaintiffs. A motion for summary adjudication shall be granted only if it completely disposes of a cause of action, an affirmative defense, a claim for damages, or an issue of duty.” (Code Civ. Proc., § 437c, subd. (f)(1).) A motion for summary adjudication shall proceed in all procedural respects as a motion for summary judgment. (Code Civ. Proc., § 437c, subd. (f)(2).)

“[T]he initial burden is always on the moving party to make a prima facia 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).) A moving defendant need not conclusively negate an element of plaintiff’s cause of action. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 854.) 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, supra, 25 Cal.4th at p. 854.) It is insufficient for the defendant to merely point out the absence of evidence. (Gaggero v. Yura (2003) 108 Cal.App.4th 884, 891.) The defendant “must also produce evidence that the plaintiff cannot reasonably obtain evidence to support his or her claim.” (Ibid.) 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.)

IV. DISCUSSION

As framed by her Complaint, Plaintiff alleges Defendant provided a defective coffee cup and sleeve that caused the spillage of boiling hot coffee onto Plaintiff’s thighs. (Complaint, ¶ GN-1.) The Complaint refers to coffee, but Plaintiff testified she ordered tea. Plaintiff alleges strict products liability for design, manufacturing, and failure to warn, and breach of implied warranty. (Complaint, ¶¶ Prod.L-4, Prod.L-6.)

Products Liability

“‘Products liability is the name currently given to the area of law involving the liability of those who supply goods or products for the use of others to purchasers, users, and bystanders for losses of various kinds resulting from so-called defects in those products.’ [Citation.]” (Johnson v. United States Steel Corp. (2015) 240 Cal.App.4th 22, 30.) To prevail in strict products liability, a plaintiff “must prove he was injured by a defect in the product and that the product was defective when it left the hands of the retailer or manufacturer.” (Jiminez, supra, 4 Cal.3d at p. 383.) A plaintiff may seek recovery in a products liability case on theories of both negligence and strict liability. (Jiminez v. Sears, Roebuck & Co. (1971) 4 Cal.3d 379, 387.) “In products liability cases, a consumer injured by a defective product may sue any business entity in the chain of production and marketing, from the original manufacturer down through the distributor and wholesaler to the retailer; liability of all such defendants is joint and several.” (Kaminski v. Western MacArthur Co. (1985) 175 Cal.App.3d 445, 455-456.) This is true even where a defendant in the chain never took possession of the product. (Canifax v. Hercules Powder Co. (1965) 237 Cal.App.2d 44, 50-51.)

“The law has long recognized three types of product defects: manufacturing defects, design defects, and ‘warning defects.’ [Citation.]” (Webb v. Special Electric Co., Inc. (2016) 63 Cal.4th 167, 180.) Manufacturing defects arise where a flaw in the manufacturing process creates a product that differs from what the manufacturer intended. (Brown v. Superior Court (1988) 44 Cal.3d 1049, 1057.) Design defects occur where the product, although properly manufactured, is dangerous because it lacks a critical feature needed to ensure safe use. (Ibid.) A design defect can be found either where the product failed to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner (consumer expectations test), or where the risk of danger inherent in the product’s design outweighs the design’s benefits (risk-benefit test). (Barker v. Lull Engineering Co. (1978) 20 Cal.3d 413, 432.) Finally, a product may be dangerous where it lacks adequate warnings or instructions. (Brown, supra, 44 Cal.3d at p. 1057.) Generally, manufacturers have a duty to warn consumers of the hazards inherent in the products of which consumers are unaware. (Ibid.) In California, liability for failure to warn is conditioned on the manufacturer’s actual or constructive knowledge of the risk. (Anderson v. Owens-Cornring Fiberglas Corp. (1991) 53 Cal.3d 987, 1000.) The duty to warn applies to all entities in a product’s chain of distribution. (Taylor v. Elliott Turbomachinery Co. Inc. (2009) 171 Cal.App.4th 564, 575.)

Defendant argues Plaintiff has yet to identify, in either responses to written discovery or at her deposition, the defect or kind of warning that should have been given. “[A] moving defendant may rely on factually devoid [discovery] responses to shift the burden of proof pusruant to section 437c, subdivision (o)(2). Once the burden shifts as a result of the factually devoid discovery responses, the plaintiff must set forth the specific facts which prove the existence of a triable issue of material fact.” (Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 591.) However, Defendant did not provide Plaintiff’s responses to written discovery. Plaintiff argues Defendant never propounded contention interrogatories or asked her to set forth her legal theories or facts that support her claims. Therefore, the Court cannot conclude Defendant has shifted the burden of proof to Plaintiff based on factually devoid discovery responses.

However, as framed by the Complaint, Plaintiff alleged she was injured by the “defective cup and sleeve.” It is undisputed Defendant does not manufacture its cups or sleeves. (UMF No. 28.)[1] It is also undisputed there was no sleeve on Plaintiff’s beverage. (UMF No. 7.) Defendant argues Plaintiff cannot establish a defect in the product, what warning was required, or that the lack of warning was a substantial factor in causing harm to her.

As discussed below, the Court finds Defendant met its initial burden of showing Plaintiff cannot prove her cause of action for products liability and Plaintiff failed to show a triable issue of material fact exists. For clarity, the parties’ arguments are discussed together.

Manufacturing and Design Defect

At her deposition, Plaintiff testified the cup was too hot, too full, and double cupped without a sleeve rather than single cupped with a sleeve. Plaintiff testified that when she took the lid off her cup, she saw the hot water at the brim of the cup. (Notice of Lodgment, Ex. C at p. 100:5-12.) She put the cup on the table and approached the drink with her mouth so that she could take a sip and make it less full. (Id. at p. 101:6-12.) Plaintiff testified she was pushing back her chair, grabbed the table to keep her balance and fell forward a bit, and then the drink spilled into her lap. Notice of Lodgment, Ex. C at pp. 102:7-25, 103:9-13, 104:3-4, 103:20-24.)

Defendant argues this testimony does not establish a product defect caused Plaintiff’s injuries. Plaintiff counters that the cup had a manufacturing defect because it differed from the manufacturer’s intended result.[2] “[A] product has a manufacturing defect if the product as manufactured does not conform to the manufacturer’s design.” (Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th 173, 190.) As evidence of the manufacturer’s design, Plaintiff cites Defendant’s manual for serving hot beverages. Defendant’s Beverage Resource Manual states that to reduce waste and ensure consistent execution from store to store, a cup sleeve should be used on tall and grande sized beverages containing brewed coffee, americano, hot tea, and caffe misto, and a cup sleeve should be used on all venti sized beverages containing all hot beverages. As for double-cupping standards, “short water-based beverages” should be double-cupped because cup sleeves do not fit this size cup, and these are the only cups that should be double-cupped, unless requested by a customer.[3]

Plaintiff contends she ordered a tall hot tea and based on Defendant’s manual, her tall drink should have been single cupped and served with cup sleeve, rather than double cupped without a cup sleeve. Plaintiff argues that because her hot beverage cup did not conform with the Defendant’s own guidelines for serving hot beverages, it was defective.

Plaintiff broadly construes the “product” as the cup of hot tea and the “manufacturer’s design” as the manual guidelines. Even if it can be said that a barista “manufactures” a cup of tea by pouring tea into a cup and putting a lid and cup sleeve on it, under this broad interpretation of manufacturer’s design and product, Plaintiff cannot show a triable issue of fact exists. The manual states the standards on cup sleeves and double-cupping should be applied to reduce waste and ensure consistent execution from store to store. A noncompliant cup of tea does not mean the product differs from the manufacturer’s design or is defective. Rather, a noncompliant cup results in more waste or inconsistent execution from store to store. Also, the manual anticipates some tall beverages will be double cupped (e.g. when the customer requests it), meaning double cupped beverages can conform to the policy manual and are not inherently defective. Thus, double cupping, or not, is about reducing waste and customer preference, not about manufacturing design or defect.

Further, even assuming Plaintiff’s double-cupped tea can be considered a manufacturing defect, Defendant argues the defect was not the cause of Plaintiff’s injuries. A manufacturing defect is the legal cause of injury only if the defect was a substantial factor in producing the injury. (Soule v. General Motors Corp. (1994) 8 Cal.4th 548, 572.) Plaintiff contends that “[b]ut for” the cup being filled with too much hot water and the absence of a cup sleeve, “there would be no injury.” (Opp. at p. 5:21-24.)

There is no evidence that the double cup or absence of a cup sleeve were substantial factors in causing Plaintiff’s injuries. It is undisputed that Plaintiff put the cup on the table, removed the lid, and approached the cup with her mouth to take a sip of the tea, pushed her chair back farther than she expected, grabbed the table and fell forward a bit, and the drink spilled into her lap. (Notice of Lodgment, Ex. C at pp. 102:7-25, 103:9-13, 104:3-4.) Plaintiff does not explain how a cup sleeve instead of a second cup would have made a difference in stopping the cup from spilling, or why a cup sleeve is any different than a double cup in terms of protecting hands against a hot beverage.

Also, there is no evidence that less hot water in the cup would have made a difference. Plaintiff testified she pushed her chair back, it went back further than she expected, she felt that she was going to fall backwards, so she grabbed the table to try to hold on and fell forward a little bit. (Notice of Lodgment, Ex. C at pp. 102:7-25, 103:9-13, 104:3-4.) She testified “I don’t know how the drink got spilled. It just – as far as I know, I was pushing back, and then the drink spilled and burned me. (Id. at p. 103:20-24.) Even if the cup had contained less water, it still would have spilled in her lap when Plaintiff pushed her chair back, grabbed the table and fell forward.

Defendant argues that the same lack of evidence on causation is fatal to Plaintiff’s implied warranty claim. Plaintiff says nothing in her opposition about her implied warranty claim, thereby conceding that no issue of disputed fact exists on that claim.

Failure to Warn Defect

“California law recognizes separate failure to warn claims under both strict liability and negligence theories. In general, a product seller will be strictly liable for failure to warn if a warning was feasible and the absence of a warning caused the plaintiff’s injury. [Citation.] Reasonableness of the seller’s failure to warn is immaterial in the strict liability context. [Citation.] Conversely, to prevail on a claim for negligent failure to warn, the plaintiff must prove that the seller’s conduct fell below the standard of care. [Citation.] If a prudent seller would have acted reasonably in not giving a warning, the seller will not have been negligent.” (Webb, supra, 63 Cal.4th at p. 181.) “The duty to warn is measured by what is generally known or should have been known to the class of sophisticated users, rather than by the individual plaintiff’s subjective knowledge.” (Johnson v. American Standard, Inc. (2008) 43 Cal.4th 56, 65-66.) “California law . . . recognizes the obvious danger rule, which provides that there is no need to warn of known risks under either a negligence or strict liability theory.” (Id. at p. 67.)

Here, Defendant argues the potential harm associated with a hot cup of tea is obvious and no duty to warn arose. Plaintiff repeatedly testified she knew the beverage was hot, “very hot,” and “too hot.” (Notice of Lodgment, Ex. C at pp. 96:15-19, 97:12-14, 99:1-4, 99:11-13, 101:2-8, Defendant cites to non-binding case law outside this jurisdiction noting that the danger posed by hot beverages is obvious such that no warning is required. (See, e.g., Holowaty v. McDonald’s Corp. (D.Minn 1998) 10 F.Supp.2d 1078, 1080 [applying Minnesota law and holding McDonald’s not strictly liable for failing to warn of the risk of burns from spilled coffee]; McMahon v. Bunn-O-Matic Corp. (1998) 150 F.3d 651, 657.) Defendant also cites to an unpublished New York case where summary judgment was granted in favor of Starbucks on the plaintiff’s claims that her cup of hot tea was defective because it was double cupped and too full, which the plaintiff claimed caused her hot beverage to spill on her when she tried to remove the lid to add sugar. (Moltner v. Starbucks Coffee Co. (Oct. 23, 2009, WL 3573190) [nonpub. opn.].)

In opposition, Plaintiff cites, without analysis or argument, a case about landowner liability for dangerous conditions on private property that are open and obvious. Plaintiff then states Defendant could have prevented this entire incident if it had provided a cup sleeve and therefore, there should be no open and obvious defense. Plaintiff’s contention lacks any analysis or support and fails to address the substance of Defendant’s argument that any danger posed by the beverage was obvious and therefore, it had no duty to warn of it.

Accordingly, Plaintiff has failed to show there is a triable issue of fact on a duty to warn theory.

Negligence

“[I]n a products liability case the plaintiff in order to recover in strict liaiblity in tort must prove that he was injured by a defect in the product and that the product was defective when it left the hands of the retailer or manufacturer; whereas to recover in negligence the plaintiff must prove the same two elements plus an additional element, namely, that the defect in the product was due to negligence of the defendant.” (Jiminez, supra, 4 Cal.3d at p. 383.)

Defendant argues that because Plaintiff cannot prove a defect-caused injury, her claim for negligence must also fail. Plaintiff makes no argument as to the viability of her negligence cause of action. Because Plaintiff failed to show a triable issue of fact exists as to whether there was a defect and whether any defect caused her injuries, her claim based on negligence must also fail.

V. CONCLUSION

In light of the foregoing, the Motion for summary judgment is GRANTED.

Moving party to give notice.

Parties who intend to submit on this tentative must send an email to the Court at SSCDEPT4B@lacourt.org indicating intention to submit on the tentative as directed by the instructions provided on the court’s website at www.lacourt.org.

[1] The only supporting evidence for this fact is Defendant’s own responses to discovery, which the Court cannot consider. (Code Civ. Proc., § 2030.410 [“At the trial or any other hearing in the action, so far as admissible under the rules of evidence, the propounding party or any party other than the responding party may use any answer or part of an answer to an interrogatory only against the responding party”]; Great American Ins. Cos. v. Gordon Trucking, Inc. (2008) 165 Cal.App.4th 445, 450 [“the responding party may not use its own interrogatory responses in its own favor . . . as evidence supporting its statement of undisputed facts”].) However, Plaintiff raised no evidentiary objection and responded that this fact was undisputed. (See UMF No. 28.) Therefore, the Court will consider it undisputed.

[2] Plaintiff does not argue the cup had a design defect.

[3] Plaintiff filed a “Notice of Filing Confidential Document Under Seal Pursuant to A Protective Order and Without Any Further Sealing Order Required,” attaching pages from the Beverage Resource Manual. Under the Protective Order in this case, such a filing is only for discovery motions or other proceedings not governed by California Rules of Court, Rules 2.550 and 2.551, not for summary judgment motions. (Cal. Rule of Court, Rule 2.550(a)(3).) In any event and regardless of the Notice stating they are under seal, the pages were not filed under seal, the pages are not stamped “Confidential” with the case name and number as is required by the Protective Order, the information in those pages does not appear to be a trade secret or the type of information that would satisfy the high standards for sealing documents, and Defendant did not object to the filing of the pages in the public record.