This case was last updated from Los Angeles County Superior Courts on 07/08/2019 at 03:02:59 (UTC).

ROBERT CLARK VS CAMPBELL SOUP COMPANY ET AL

Case Summary

On 02/09/2018 ROBERT CLARK filed a Personal Injury - Other Product Liability lawsuit against CAMPBELL SOUP COMPANY. This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****3680

  • Filing Date:

    02/09/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Personal Injury - Other Product Liability

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

 

Party Details

Plaintiff and Petitioner

CLARK ROBERT

Defendants and Respondents

MARTINEZ ANGIE

CAMPBELL SOUP COMPANY

CSC BRANDS LP

DOES 1 TO 25

TARGET INC

Attorney/Law Firm Details

Plaintiff and Petitioner Attorney

FRADKIN IGOR

Defendant and Respondent Attorney

LEWIS BRISBOIS BISGAARD & SMITH LLP

 

Court Documents

Stipulation and Order

4/23/2019: Stipulation and Order

CAMPBELL SOUP COMPANY'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

4/2/2018: CAMPBELL SOUP COMPANY'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

PROOF OF SERVICE SUMMONS

3/9/2018: PROOF OF SERVICE SUMMONS

PROOF OF SERVICE SUMMONS

3/9/2018: PROOF OF SERVICE SUMMONS

SUMMONS

2/9/2018: SUMMONS

COMPLAINT FOR DAMAGES 1. STRICT LIABILITY; ETC

2/9/2018: COMPLAINT FOR DAMAGES 1. STRICT LIABILITY; ETC

 

Docket Entries

  • 04/23/2019
  • Stipulation and Order ([Proposed] to continue Trial, FSC (and Related Motion/Discovery Dates)); Filed by Campbell Soup Company (Defendant)

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  • 04/02/2018
  • CAMPBELL SOUP COMPANY'S ANSWER TO COMPLAINT; DEMAND FOR JURY TRIAL

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  • 04/02/2018
  • Answer; Filed by Campbell Soup Company (Defendant)

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  • 03/09/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/09/2018
  • PROOF OF SERVICE SUMMONS

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  • 03/09/2018
  • Proof of Service (not Summons and Complaint); Filed by Robert Clark (Plaintiff)

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  • 03/09/2018
  • Proof of Service (not Summons and Complaint); Filed by Robert Clark (Plaintiff)

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  • 02/09/2018
  • Complaint; Filed by Robert Clark (Plaintiff)

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  • 02/09/2018
  • COMPLAINT FOR DAMAGES 1. STRICT LIABILITY; ETC

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  • 02/09/2018
  • SUMMONS

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Tentative Rulings

Case Number: BC693680    Hearing Date: August 04, 2020    Dept: 28

Motion for Summary Judgment, or in the alternative, Summary Adjudication

Having considered the moving, opposing, and reply papers the Court rules as follows.

BACKGROUND

On February 9, 2018, Plaintiff Robert Clark (“Plaintiff”) filed a complaint against Defendants Campbell Soup Company, CSC Brands LP, Target, Inc., and Angie Martinez.  The complaint alleges strict liability, negligence, breach of the implied warranties of merchantability and fitness for a particular purpose, negligent misrepresentation, and breach of express warranty.  The complaint arises from an incident where Plaintiff became infected, poisoned, and contaminated after consuming a can of soup on February 23, 2016.

On December 6, 2019, Defendant Campbell Soup Company filed a motion for summary judgment, or in the alternative, summary adjudication pursuant to California Code of Civil Procedure section 437c.

A trial setting conference is scheduled for August 4, 2020.

PARTYS REQUESTS

Defendant Campbell Soup Company (“Moving Defendant”) asks the Court to enter summary judgment, or in the alternative, summary adjudication in Moving Defendant’s favor and against Plaintiff because there is no triable issue of material fact and Moving Defendant is entitled to judgment as a matter of law.

Moving Defendant makes the following arguments.  First, Plaintiff cannot establish causation, which is an essential element to each of Plaintiff’s causes of action.  Second, Plaintiff does not have evidence showing the subject soup was defective in its manufacture or design.  Third, Plaintiff does not have evidence showing Moving Defendant failed to warn Plaintiff of any defect in the subject soup and that any such warning would be effective.  Fourth, Plaintiff does not have evidence showing Moving Defendant acted negligently.  Fifth, Plaintiff does not have evidence satisfying the elements of Plaintiff’s theories of liability based on implied and express warranties against Moving Defendant.  Sixth, the doctrine of strict products liability supersedes Plaintiff’s causes of action based on breaches of implied warranties.  Seventh, Plaintiff does not have evidence Moving Defendant made a representation that was untrue, that Plaintiff relied on such a representation, and Moving Defendant intended Plaintiff to rely on such a representation.

OBJECTIONS

Plaintiff objects to Howard E. Pitchon, M.D.’s declaration in its entirety because it fails to state the location where the declaration was signed.  California Code of Civil Procedure section 2015.5 states that section only needs to “substantially” comply to the proscribed form.  The Court finds Dr. Pitchon’s declaration substantially complies with that section.  Namely, the declaration is dated and signed under penalty of perjury under the laws of California.  Thus, this objection is OVERRULED.

Plaintiff objects to paragraphs 4, 5, 6, 10, and 13 of Dr. Pitchon’s declaration for misstating evidence.  The Court agrees.  Dr. Pitchon fails to recognize the treating physicians that diagnosed Plaintiff’s injuries as resulting from food poisoning after eating Moving Defendant’s soup that Plaintiff found mold in.  Dr. Pitchon also fails to recognize the medical records showing Plaintiff had a “loose stool,” which the Court understands as being diarrhea or the like.  Dr. Pitchon further fails to recognize that Plaintiff testified the soup tasted and smelled different and saw yellow and green mold in the soup after eating it.  Dr. Pitchon lastly fails to recognize that Plaintiff testified that he did not boil the soup, but merely warmed it to the point of starting to boil.  As such, these objections are SUSTAINED.

All other objections are OVERRULED.

LEGAL STANDARD

The purpose of a motion for summary judgment “is to provide courts with a mechanism to cut through the parties’ pleadings in order to determine whether, despite their allegations, trial is in fact necessary to resolve their dispute.” (Aguilar v. Atl. Richfield Co. (2001) 25 Cal.4th 826, 843.) “Code of Civil Procedure section 437c, subdivision (c), requires the trial judge to grant summary judgment if all the evidence submitted, and ‘all inferences reasonably deducible from the evidence’ and uncontradicted by other inferences or evidence, 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.” (Adler v. Manor Healthcare Corp. (1992) 7 Cal.App.4th 1110, 1119.)

“On a motion for summary judgment, the initial burden is always on the moving party to make a prima facie 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 “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.” (Code Civ. Proc., § 437c, subd. (p)(2).) “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.” (Ibid.) “If the plaintiff cannot do so, summary judgment should be granted.” (Avivi v. Centro Medico Urgente Med. Ctr. (2008) 159 Cal.App.4th 463, 467.)

“When deciding whether to grant summary judgment, the court must consider all of the evidence set forth in the papers (except evidence to which the court has sustained an objection), as well as all reasonable inferences that may be drawn from that evidence, in the light most favorable to the party opposing summary judgment.”  (Avivi, supra, 159 Cal.App.4th at p. 467; see also Code Civ. Proc., § 437c, subd. (c).)

DISCUSSION

Causation

Causation is an essential element of strict and negligent products liability, negligence, breach of implied warranties of merchantability and fitness for a particular purpose, negligent misrepresentation, and breach of an express warranty(See Merrill v. Navegar, Inc. (2001) 26 Cal.4th 465, 479 [products liability]; McIntyre v. Colonies-Pacific, LLC¿(2014) 228 Cal.App.4th 664, 671 [negligence]; Gutierrez v. Carmax Auto Superstores California (2018) 19 Cal.App.5th 1234, 1246-1247 [implied warranty of merchantability]; Cardinal Health 301, Inc. v. Tyco Electronics Corp. (2008) 169 Cal.App.4th 116, 146 [breach of implied warranty of fitness for a particular purpose]; National Union Fire Ins. Co. of Pittsburgh, PA v. Cambridge Integrated Services Group, Inc. (2009) 171 Cal.App.4th 35, 50 [negligent misrepresentation]; Williams v. Beechnut Nutrition Corp. (1986) 185 Cal.App.3d 135, 142 [breach of express warranty].)

The substantial factor test is used to determine whether the causation element is satisfied in causes of action for products liability, negligence, and negligent misrepresentation.  (Johnson & Johnson Talcum Powder Cases (2019) 37 Cal.App.5th 292, 323-324 [products liability]; Union Pacific Railroad Co. v. Ameron Pole Products LLC (2019) 43 Cal.App.5th 974, 981-982 [negligence]; In re Tobacco II Cases (2009) 46 Cal.4th 298, 326 [negligent misrepresentation].)  Causation is demonstrated breach of warranty claims when it is more likely than not that the defect caused the harm.  (Cardinal Health 301, Inc., supra, 169 Cal.App.4th at p. 146.)

A court may grant summary judgment because when there is no triable issue of material fact regarding causation only when there is no other reasonable conclusion.  (Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 864.)

Moving Defendant’s undisputed material fact establish the following.  On December 7, 2015, Plaintiff purchased three cans of Moving Defendant’s soup.  (UMF No. 3.)  On after 9:00 p.m. on February 23, 2016, Plaintiff consumed some of the soup in one of the cans after cooking it for a minute or two until it started to bubble.  (UMF Nos. 8, 12.)  At approximately midnight, Plaintiff vomited and continued to vomit for several hours.  (UMF No. 20.)  Plaintiff went to look at the left over soup and saw green and yellow mold in the soup.  (UMF No. 21.)  Plaintiff alleges the soup was unsafe and dangerous because it contained Salmonellosis.  (UMF No. 30.)  No one tested the contents of the subject soup Plaintiff did not finish consuming.  (UMF No. 22.)  

Moving Defendant’s undisputed material facts also establish the following.  On February 24, 2016, Plaintiff sought treatment at USC Verdugo Hills.  (UMF No. 24.)  Plaintiff has a history of gastrointestinal problems, including acid reflux and gastroesophageal reflux disease dating back years before the incident.  (UMF No. 27.)  There is no evidence showing Plaintiff had Salmonellosis as a result of consuming Moving Defendant’s soup.  (UMF Nos. 35.)  Plaintiff’s boiling of the soup would kill and inactivate any foodborne pathogens.  (UMF No. 41.)

Moving Defendant’s expert on internal medicine, Howard E. Pitchon M.D., has a sub-specialty in infectious diseases.  (Pitchon Decl., ¶ 2.)  Dr. Pitchon reviewed Plaintiff’s medical records from USC Verdugo Hills Hospital regarding treatment rendered on February 24, 2016, as well as other medical records pertaining to Plaintiff.  (Pitchon Decl., ¶ 3.)  Dr. Pitchon opined that Plaintiff had preexisting conditions that could have caused his complaints, including gastroesophageal reflux disease and hiatal hernia.  (Pitchon Decl., ¶ 8.)  Further, Dr. Pitchon declared that it would be impossible for anyone to state to a reasonable degree of medical probability that Plaintiff’s injuries were caused by Moving Defendant’s soup because Plaintiff cannot recall everything Plaintiff consumed in the days before the incident.  (Pitchon Decl., ¶ 14.)

The Court finds Moving Defendant has met its burden.  As in any other personal injury action, the plaintiff must be able to prove that the food was unwholesome or unfit and that that unfitness caused his illness.  (Minder v. Cielito Lindo Restaurant (1977) 67 Cal.App.3d 1003, 1008.)  The unwholesome character of food is not established, nor is a prima facie case established, merely by showing that a plaintiff became sick after eating it. (Ibid.) The proof must go further and show that some particular article of the food consumed was in fact unwholesome and unfit for human consumption. (Ibid.) Id.)

Here, Defendant presents evidence, against its own interest, showing Plaintiff saw mold in soup he had partially eaten just hours prior.  However, the mere consumption of moldy food does not support a reasonable inference that it caused Salmonellosis.  Accordingly, Defendant has met its burden.  The burden shifts to Plaintiff.

The Court finds Plaintiff has not met his burden.  Plaintiff presents no medical literature supporting a claim that the mold or fungus present in leftover soup is causative for foodborne illness.  Additionally, Plaintiff presents no evidence of any diagnostic testing proving his symptoms were caused by his ingesting the soup. Thus, Plaintiff has not established that it was the soup that made him sick.  (See e.g., Sarti v. Salt Creek Ltd. (2008) 167 Cal.App.4th 1187, 1196.)  

is his allegations that he ate soup, became sick, later saw mold in the remainder of the soup, and that, based upon his presentation and history, his doctors agreed that he had suffered food poisoning.  While Plaintiff’s doctors may have opined that his food poisoning was related to his consumption of the soup, their opinions on this issue suffer from the same lack of foundation as Plaintiff’s argument here.   And Plaintiff’s discovery responses do not offer any evidence supporting his positions here.  (See Union Bank v. Superior Court (1995) 31 Cal.App.4th 573, 590.)  There simply is an absence of proof to establish the requisite causal connection, and Defendant has established that that requisite proof does not exist.   

CONCLUSION

In sum, Plaintiff cannot establish that his symptoms were caused by his ingesting Defendants soup.  The motion for summary judgment is GRANTED.

The motion for summary adjudication is DENIED.

Moving Defendant is ordered to give notice of this ruling.

The parties are directed to the header of this tentative ruling for further instructions.

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