SARTI v. SALT CREEK LTD, G037818.
| Decision Date | 21 January 2009 |
| Docket Number | No. G037818.,G037818. |
| Court | California Court of Appeals Court of Appeals |
| Parties | Alexis SARTI, Plaintiff and Appellant, v. SALT CREEK LTD., Defendant and Respondent. |
167 Cal.App.4th 1187
85 Cal.Rptr.3d 506
Alexis SARTI, Plaintiff and Appellant,
v.
SALT CREEK LTD., Defendant and Respondent.
No. G037818.
Court of Appeal, Fourth District, Division 3, California.
Oct. 27, 2008.
As Modified on Denial of Rehearing Nov. 26, 2008.
Review Denied Jan. 21, 2009. *
Bremer Whyte Brown & O'Meara, Keith Bremer, Tyler D. Offenhauser, San Diego; Snell & Wilmer, Richard A. Derevan and Todd E. Lundell, Costa Mesa, for Plaintiff and Appellant.
Lewis Brisbois Bisgaard & Smith, Roy G. Weatherup, Caroline E. Chan, Los Angeles;
Osman & Associates, San Diego, and Richard L. Scott, Diamond Bar, for Defendant and Respondent.
OPINION
The trial judge in this case read Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003, 136 Cal.Rptr. 915 ( Minder ) for the proposition that reasonable inferences are never, or hardly ever, available in food poisoning cases. Based entirely on the Minder opinion, he granted a judgment notwithstanding the verdict (often called a “jnov”) even though the
judge himself made it clear he would have voted with the jury on the question of liability. 1
We can understand why the judge was so cautious, but we do not think that Minder, strictly construed, should be read to preclude the use of reasonable inferences to show causation in food poisoning cases. To the degree that Minder may, arguendo, be susceptible for the proposition that inferences are unavailable in food poisoning cases, or that food poisoning defendants are somehow accorded a special, protected status with an abnormally “heightened” standard of causation, we respectfully decline to follow it. Despite intimations in the Minder opinion to the contrary, food poisoning cases are governed by the same basic rules of causation that govern other tort cases. Reasonable inferences drawn from substantial evidence are indeed available to show causation. We will therefore reverse the jnov and order reinstatement of the original verdict.
I. BACKGROUND
On April 7, 2005, Alexis Sarti and a friend ate at the Salt Creek Grille. They split an appetizer consisting of raw ahi tuna, avocado, cucumbers and soy sauce. Sarti became nauseous and chilled the next day. The day after that she suffered constant diarrhea, fever and chills. The diarrhea continued for the next ten days. By April 19, Sarti was unable to move her legs and having a hard time focusing her eyes. Her mother called the paramedics, who took her to the emergency room. Her admitting physician took a “food history.” She was put into intensive care, where a neurologist diagnosed a variant of guillain-barre syndrome (a disease that damages peripheral nerves). She was tested, and found to have campylobacter bacteria, which was the only pathogen found in the
sample. Expert testimony would later indicate that Sarti's guillain-barre was an idiosyncratic immuno-suppressant reaction to the constant diarrhea brought on from campylobacter.
Campylobacter is not found in raw tuna, unless that tuna has been cross-contaminated by raw chicken, where the bacteria is common. Sarti's sickness was reported to the Orange County Health Department. The report resulted in a “food borne illness” report dated May 5, 2005-a little less than a month after the meal. The report identified four practices at the Salt Creek Grille 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 (the tongs would take raw chicken off the grill and then cooked food would be touched with the same tongs). 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.
Sarti, who was about 21 years old at the time she became ill, never completely recovered. She had to use a walker for eight months, and to this day retains only about 40 percent of what would have been her normal endurance. She sued the partnership that owns the Salt Creek Grille for breach of warranty.
There was plenty of substantial evidence on which the jury could have found the restaurant not liable: Sarti's friend who split the appetizer did not get sick. The Salt Creek Grille takes great pains to separate its raw tuna from its raw chicken, including defrosting it in a different place in the walk-in
freezer than where the chicken is stored, having the chef use a newly cleaned cutting board for the tuna, and preparing the tuna at the opposite end of the cook's line from where the chicken is cooked. Chicken is prepared in its own separate room. Different colored cutting boards are used for tuna and chicken, and the same chef does not prepare both items. And Sarti herself worked as a supermarket checker the day she became ill, and could, at least in theory, have picked up campylobacter from a leaking bag of raw chicken she might have scanned.
But the jury didn't find the restaurant not liable. The jury returned a verdict of $725,000 in economic damages and $2.5 million in non-economic damages (obviously pain and suffering). The trial judge perceived that the jury's verdict was based on the inference that the practice of using the same wipe down rag (or storing raw meat over raw vegetables, or touching cooked food with chicken tongs that had previously touched raw chicken) had led to cross-contamination from raw chicken to raw tuna.
The trial judge himself was plain that he believed that Sarti had indeed presented “the jury with sufficient evidence to avoid a jnov.” Indeed, he said, referring to his role as “13th juror,” that “I must say I would have voted with the jury on the question of liability in this case.” (Italics added.) He elaborated: “I think this case was tried well within the profile of what I routinely see in negligence cases and, for that matter, breach of warranty cases.... I think Ms. Sarti won this case fair and square except....”
Except for the one thing that brings us to the instant appeal. The trial judge read Minder v. Cielito Lindo Restaurant, supra, 67 Cal.App.3d 1003, 136 Cal.Rptr. 915, for the black-letter rule of law that inferences are off limits to prove a food poisoning
case. (The remainder of his “fair and square except” comment was: “for what I perceive to be as the heightened causation requirements of the Minder case.”)
The trial judge had earlier noted that Minder “found that causation had not been shown as a matter of law.” Continuing, he said, “and that means to me that the concept of inferences, which are otherwise permitted in civil cases, apparently play little or no role in food poisoning cases. And remember, an inference is not evidence itself, an inference is the result of reasoning based upon collateral evidence.” He made it clear that it was only under the compulsion of the Minder case that he granted the restaurant's motion for judgment notwithstanding the verdict.
II. ANALYSIS
[1] It is understandable why the trial judge here ruled as he did. All trial courts are bound by all published decisions of the Court of Appeal ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937), the only qualifications being that the relevant point in the appellate decision must not have been disapproved by the California Supreme Court and must not be in conflict with another appellate decision. As the Supreme Court said in Auto Equity Sales (a case that ought to be covered in the very first weeks of every legal research and writing class in any California law school): “Under the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction.” ( Ibid., italics added and original italics deleted.) 2
[2] Unlike at least some federal intermediate appellate courts, 3 though, there is no horizontal stare decisis in the California Court of Appeal. 4 This court-this panel
-is not bound by Minder and we may take a more critical
approach to that opinion. Strictly construed, Minder simply held in the case before it that there wasn't enough evidence upon which a reasonable inference could be drawn that the particular kind of unsanitary practices found at the restaurant could be linked to the particular kind of food poisoning sustained by the plaintiffs. To the degree that, for sake of argument, Minder stands for more than just that (e.g., as standing for a rule that unsanitary conditions are per se insufficient to establish a reasonable inference of food poisoning), we respectfully decline to follow it.
A couple ate a Sunday afternoon lunch at a Mexican restaurant, apparently in company with another couple. The husband felt a stomach upset thereafter. Three days later he began sweating and developed a fever. Meanwhile his wife felt a little nauseated on that Sunday afternoon, and her symptoms lasted for two days, when she became feverish and chilled. After a culture it was determined...
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