Moore v. P.F. Changs China Bistro, Inc., B193396 (Cal. App. 7/25/2007), B193396

• Decision Date: 25 July 2007
• Docket Number: B193396
• Court: California Court of Appeals Court of Appeals
• Parties: BARBARA MOORE, Plaintiff and Appellant, v. P.F. CHANGS CHINA BISTRO, INC., Defendant and Respondent.

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BARBARA MOORE, Plaintiff and Appellant, v. P.F. CHANGS CHINA BISTRO, INC., Defendant and Respondent.

B193396

Court of Appeals of California, Second Appellate District Division Four

July 25, 2007.

NOT TO BE PUBLISHED

Appeal from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. NC037265) 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.

MANELLA, J.

Appellant Barbara Moore appeals from the trial court's grant of summary judgment in favor of respondent P. F. Chang's China Bistro, Inc. (PFC) on her complaint for personal injury allegedly caused by an allergic reaction to a dish eaten at PFC's 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 PFC's 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. Moore's 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 PFC's 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 Moore's 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 counsel's argument that Dr. Glovsky's declaration was evidence that Moore's 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[idn't] really identify any evidence to support his basis for [his] assertion[]."

DISCUSSION

I Burden of Proof and Standard of Review

As the defendant, PFC's burden on summary judgment was to show that no cause of action in Moore's 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 PFC's 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 defendant's 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 Moore's claims at issue here...