Virrueta v. Starbucks CA2/8

Filed 10/31/22 Virrueta v. Starbucks CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
ALICIA VIRRUETA, B314036
Plaintiff and Appellant, Los Angeles County
Super. Ct. No. 19STCV08153
v.
STARBUCKS CORPORATION,
Defendant and Respondent.
APPEAL from judgment of the Superior Court of
Los Angeles County. Thomas D. Long, Judge. Affirmed.
Keosian Law and Natalie Siran Hairabedian for Plaintiff
and Appellant.
Horton, Oberrecht & Kirkpatrick, Kimberly S. Oberrecht
and T. Kelly Cox for Defendant and Respondent.
___________________________
Plaintiff Alicia Virrueta has a long history of
gastroenterological symptoms. Her medical records produced in
discovery reflect multiple visits to urgent care for nausea,
diarrhea, and vomiting dating back to 2014. This lawsuit stems
from allegations that a particular bout of gastroenterological
symptoms, beginning in late 2017, was caused by a contaminated
beverage sold by defendant Starbucks Corporation. The trial
court granted Starbucks’s motion for summary judgment on the
basis that plaintiff failed to show a triable issue of fact as to
whether the beverage caused her symptoms. Plaintiff appealed
and we now affirm.
BACKGROUND
On December 10, 2017, plaintiff purchased a beverage from
a Starbucks store in Alhambra with whole strawberries in the
bottom of the clear cup. Plaintiff drank about half of the
beverage and put the rest in her refrigerator. Within three or
four hours, she began to feel cramping in her stomach and had
diarrhea. Later that evening, she vomited. Plaintiff did not
think much of this, however, because she had the same kind of
beverage before and it never made her sick. Moreover, she had
not noticed anything wrong with the beverage’s texture, taste, or
anything else.
The next morning, plaintiff felt better but dehydrated.
She took the beverage from her refrigerator, finished drinking it,
and began eating the whole strawberries in the bottom of the cup.
After eating a few, she saw about three maggots in the cup that
she believes came from the strawberries. She “got disgusted” and
stopped eating the strawberries. She photographed what she
believed to be a maggot. The cup and its remaining contents
were later thrown out.
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Plaintiff’s opening brief asserts without record citation that
it was “at this point”—after seeing the maggots—that she “got so
ill that she presented to the urgent care.” The record does not
support this assertion. The record reflects that, as discussed
presently, plaintiff did not go to urgent care until the following
day, reporting that her symptoms began the day before she saw
the maggots.
The following afternoon, December 12, plaintiff presented
to Fair Oaks UCC, an urgent care center in Pasadena,
complaining of “abdominal pain, nausea, vomiting and diarrhea
since Sunday” (the day she bought the beverage at Starbucks).
Her visit summary reflects that she reported the maggots in the
beverage to Fair Oaks UCC and said the thought of the maggots
made her feel nauseous. Fair Oaks UCC administered a number
of tests, diagnosed plaintiff with acute gastroenteritis and a
urinary tract infection (UTI), and discharged her with
instructions.
Plaintiff returned to Fair Oaks UCC at least two more
times in the next three weeks and was admitted to Huntington
Hospital in early 2018 for assessment and treatment of her UTI
and gastroenterological symptoms.
In early 2019, plaintiff sued Starbucks and certain entities
related to Fair Oaks UCC and Huntington Hospital on various
tort theories. She later dismissed all defendants but Starbucks.
The theory of her complaint was that she was sickened by
Escherichia coli (E. coli) which she got from the Starbucks
beverage containing maggots. She alleged: “Plaintiff began
experiencing severe abdominal pain, nausea, diarrhea, and
vomiting following the consumption of the drink. Upon
inspection, plaintiff discovered maggots on the freeze-dried
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strawberries. Plaintiff immediately sought medical care and was
eventually diagnosed with Escherichia coli (E. Coli), giving rise to
economic and noneconomic damages.”
After extensive discovery, Starbucks moved for summary
judgment. In support of its motion, Starbucks provided evidence
and expert testimony that E. coli was only ever detected in
plaintiff’s urine, which is not indicative of a foodborne illness, and
that the E. coli detected was not a kind that causes
gastrointestinal distress. Starbucks further provided expert
testimony that the timing of plaintiff’s symptoms—diarrhea
starting three to four hours after finishing half her beverage—
was incompatible with a reaction to a foodborne pathogen in the
beverage.
In further support of its motion, Starbucks proffered an
interrogatory requesting that plaintiff state “each fact” on which
she contended Starbucks was liable, together with plaintiff’s
factually devoid response: “Objection. This discovery request
seeks the legal reasoning and theories of Plaintiff’s contentions.
Plaintiff is not required to prepare the defendant’s case.”
Plaintiff opposed Starbucks’s motion. In her opposition she
made no effort to rebut Starbucks’s evidence that she did not
contract E. coli from the beverage. Instead, for the first time, she
claimed she suffered symptoms due to her disgust at seeing
maggots in her beverage. As characterized in her opposition,
“[s]he began to eat some of the strawberries when she noticed
there were foreign organisms, which she believed to be ‘maggots’
at the time. She was immediately disgusted by the thought of
consuming the Beverage, which was adulterated or
contaminated. [She] began experiencing severe abdominal pain,
nausea, diarrhea, and vomiting.” As evidentiary support for this
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new theory, she offered the declaration of Dr. M. Eric Gershwin,
M.D., M.A.C.P., M.A.C.R., a Distinguished Professor of Medicine
at the University of California School of Medicine at Davis,
stating in relevant part his “belie[f] more likely than not the
drink, either by taste or by noting the maggots, made [plaintiff]
sick to her stomach and the cascade of vomiting and diarrhea.”
The trial court granted Starbucks’s motion and plaintiff
appealed.
DISCUSSION
1. Summary Judgment Standard of Review
A defendant moving for summary judgment must show
“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).) Summary
judgment is appropriate where “all the papers submitted show
that there is no triable issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” (Id.,
subd. (c).)
Our Supreme Court has made clear that the purpose of the
1992 and 1993 amendments to the summary judgment statute
was “ ‘to liberalize the granting of [summary judgment]
motions.’ ” (Perry v. Bakewell Hawthorne, LLC (2017) 2 Cal.5th
536, 542.) It is no longer called a “disfavored” remedy. (Ibid.)
“Summary judgment is now seen as ‘a particularly suitable
means to test the sufficiency’ of the plaintiff’s or defendant’s
case.” (Ibid.)
On appeal, “we take the facts from the record that was
before the trial court. . . . ‘ “We review the trial court’s decision
de novo, considering all the evidence set forth in the moving and
opposing papers except that to which objections were made and
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sustained.” ’ ” (Yanowitz v. L’Oreal USA, Inc. (2005) 36 Cal.4th
1028, 1037.)
To the extent an appeal relies on evidence which the trial
court excluded, the appellant must show error in such exclusion
before we may consider it. We review the trial court’s evidentiary
rulings at the summary judgment stage for abuse of discretion.
(Ducksworth v. Tri-Modal Distribution Services (2020)
47 Cal.App.5th 532, 544, overruled on other grounds Pollock v.
Tri-Modal Distribution Services, Inc. (2021) 11 Cal.5th 918, 932.)
2. Plaintiff’s Admitted Evidence Does Not Show a
Triable Issue Regarding Causation.
Plaintiff contends two expert declarations created a
material factual dispute on causation. But the court sustained
defendant’s objections to nearly all the testimony she identifies,
and plaintiff fails to show error in the trial court’s evidentiary
rulings. The evidence that was not excluded is immaterial to
causation or insufficient to satisfy her burden as a matter of law.
a. Declaration of Robert Callaway
The first piece of evidence plaintiff relies on is the
declaration of Robert Callaway, her forensic investigator.
Plaintiff claims that Mr. Callaway “opined that the insect species
found in [plaintiff’s] beverage was a fly species and that fly
pupae/larvae are known to act as reservoirs for E. coli bacteria
(from feces), which have the potential to cause illness in humans”
and “that strawberries can and have carried and transmitted
E. coli and freezing these organisms does not kill them.” Plaintiff
asserts that this testimony “alone provides a question of fact for
the jury to consider whether the maggot itself caused [p]laintiff to
suffer any injury.”
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As an initial matter, plaintiff grossly mischaracterizes
Mr. Callaway’s testimony. Mr. Callaway’s testimony was that he
was “unable to determine the insect species” plaintiff
photographed in her beverage, but that he “belie[ved] it [wa]s a
fly species.” (Italics added.) Mr. Callaway did not state the
strength of his belief or the reasons for it.
Starbucks objected to Mr. Callaway’s declaration. As to
Mr. Callaway’s testimony that the organism plaintiff
photographed in her beverage might be a fly species, the trial
court sustained the objection, explaining that Mr. Callaway’s
testimony on this point was “speculative and relate[d] [to] or
rel[ied] on case-specific facts [Mr. Callaway had] not established
independent knowledge of.” Plaintiff has made no effort to show
error in this evidentiary ruling. As we will not find an abuse of
discretion where none is claimed (see In re K.B. (2015)
238 Cal.App.4th 989, 995), we do not consider this evidence.
The trial court declined to consider Starbucks’s objections
to Mr. Callaway’s other testimony concerning the capacity of fly
larvae or pupae to transmit E. coli to humans, calling it “not
material to the disposition of [Starbucks’s] motion.” We agree.
Without admissible evidence that fly larvae or pupae were in the
beverage, the testimony about their capacity to transmit disease
is irrelevant and does not show a triable issue as to causation.
The trial court also did not consider Starbucks’s objections
to Mr. Callaway’s observation that “strawberries can and have
carried and transmitted E. coli” and that “[f]reezing these
organisms does not kill them.” But plaintiff directs us to no
expert testimony (or any other evidence) that she actually did
contract foodborne E. coli. Such testimony would have been
necessary to create a triable issue given Starbucks’s expert
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testimony that she did not contract foodborne E. coli. (Fernandez
v. Alexander (2019) 31 Cal.App.5th 770, 779, quoting Bozzi v.
Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 761–762 [“ ‘When
the moving party produces a competent expert declaration
showing there is no triable issue of fact on an essential element of
the opposing party’s claims, the opposing party’s burden is to
produce a competent expert declaration to the contrary’ ”].)
Finally, plaintiff abandons any claim that she actually
contracted E. coli from the beverage in her reply. In response to
Starbucks’s comprehensive discussion of the reasons that
plaintiff cannot show the beverage gave her E. coli, plaintiff
offers only that “[Starbucks’s] fixation on the E. coli bacterium is
nothing more than a red herring.” Since the complaint was
entirely premised on an E. coli infection caused by the beverage,
we consider this a concession that plaintiff has no evidence that
E. coli in the beverage caused her illness.
In short, Mr. Callaway’s testimony does not create an issue
for trial.
b. Declaration of Dr. Gershwin
The second piece of evidence plaintiff relies on is the
declaration of Dr. Gershwin in support of her “disgust” theory—
that either tasting or “noting” the maggots caused her to become
ill. Plaintiff directs us to no other evidence supporting this
theory, which is the only causation theory she seriously pressed
in opposition to Starbucks’s motion and now presses on appeal.
Starbucks objected to this testimony on various grounds.
The court sustained Starbucks’s objections, explaining that
Dr. Gershwin’s testimony was “speculative and relate[d] [to] or
rel[ied] on case-specific facts [Dr. Gershwin had] not established
independent knowledge of.” In support, the court cited Sargon
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Enterprises, Inc. v. University of Southern California (2012)
55 Cal.4th 747, 770 (Sargon), as standing for the proposition that
“[c]ourts have the power to ‘exclude[] . . . expert opinions that rest
on guess, surmise or conjecture”; Garibay v. Hemmat (2008)
161 Cal.App.4th 735, 743, as standing for the proposition that
“[a]n expert opinion that is based on speculation, surmise or
‘assumptions of fact . . . without evidentiary support’ does not
raise a triable issue of material fact”; and People v. Sanchez
(2016) 63 Cal.4th 665, 685–686, as standing for the proposition
that “[a]n expert cannot ‘relate as true case-specific facts asserted
in hearsay statements, unless they are independently proven by
competent evidence or are covered by a hearsay exception.’ ”
Because plaintiff refers us to no other evidence in the
record to support her disgust theory, she cannot prevail in this
appeal without first establishing that the trial court abused its
discretion in excluding Dr. Gershwin’s testimony. She fails to do
so. First, plaintiff failed to claim any such error in her opening
brief. Accordingly, we treat the argument as waived. (United
Grand Corp. v. Malibu Hillbillies, LLC (2019) 36 Cal.App.5th
142, 158 [“ ‘We will not ordinarily consider issues raised for the
first time in a reply brief.’ ”].) This alone is sufficient to affirm.
Second, even if we were to consider plaintiff’s argument
offered for the first time on reply, the outcome would be the same.
We reject plaintiff’s attempt to reduce her burden on appeal by
arguing that the trial court should have relaxed the rules of
evidence in considering Dr. Gershwin’s declaration. Specifically,
she urges that “[t]he rule that a trial court must liberally
construe the evidence submitted in opposition to a summary
judgment motion applies in ruling on both the admissibility of
expert testimony and its sufficiency to create a triable issue of
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fact.” Not so. As we have previously held, “ ‘[o]nly admissible
evidence is liberally construed in deciding whether there is a
triable issue.’ ” (Fernandez v. Alexander, supra, 31 Cal.App.5th
at p. 779, quoting Bozzi v. Nordstrom, Inc., supra,
186 Cal.App.4th at p. 761.)
Moreover, plaintiff fails to address all grounds on which the
trial court excluded Dr. Gershwin’s testimony. She asserts only
that Dr. Gershwin’s declaration established an adequate
foundation for his opinions and it was permissible for him to rely
on hearsay to form his opinion. But, despite acknowledging that
an expert opinion based on speculation cannot establish
causation, she did not address the court’s determination that
Dr. Gershwin’s testimony supporting her disgust theory was
“speculative.” Again, we will not find an abuse of discretion
where none is claimed. (In re K.B., supra, 238 Cal.App.4th at
p. 995.)
In any event, the trial court did not abuse its discretion in
excluding Dr. Gershwin’s testimony as speculative. Dr. Gershwin
does not say whether he thinks plaintiff’s illness was induced “by
taste” of the beverage or by plaintiff “noting the maggots.” He
offers only that it was more likely than not caused by either one of
these two experiences. Underscoring the importance of experts
basing their opinions on facts, it was plaintiff’s testimony that
there was nothing unusual about the taste of her beverage. Dr.
Gershwin offered no basis for his stated belief that “noting the
maggots” may have made plaintiff sick. Absent some reasoned
explanation of the basis for his conclusion, it amounts to nothing
more than surmise or conjecture that is properly excluded under
Evidence Code section 801. (Sargon, supra, 55 Cal.4th at p. 770.)
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Moreover, Dr. Gershwin’s opinion that either tasting or
“noting” the maggots caused her to become ill is inconsistent with
his other opinion that plaintiff’s “hospitalization at Huntington
Hospital began with the abdominal pain and vomiting that began
when she consumed the Starbuck’s [sic] drink.” Plaintiff testified
that she had fully consumed the beverage (and experienced
symptoms) before she discovered maggots in the strawberries at
the bottom of the cup. Dr. Gershwin offers no explanation for his
inconsistent opinions that plaintiff’s injury either began before
she perceived the maggots or as a result of perceiving the
maggots. One or the other opinion (if not both) appears to be
speculative for this reason as well.
We acknowledge plaintiff’s discussion of Dryden v.
Continental Baking Co. (1938) 11 Cal.2d 33, 39, and Medeiros v.
Coca-Cola Bottling Co. (1943) 57 Cal.App.2d 707, 714, in which
judicial notice was taken of the notion that mental “shock”
relating to otherwise harmless but adulterated food consumed
could cause gastrointestinal symptoms. We do not believe that
these cases establish as a matter of law that illness following
consumption of food always creates a jury question as to whether
the food caused the illness. Questions of medical causation may
reach a jury only if the plaintiff makes a prima facie case of
causation supported by expert testimony expressed to a
reasonable medical probability. (Kline v. Zimmer, Inc. (2022)
79 Cal.App.5th 123, 131.)
In sum, the only evidence that plaintiff relies on to show an
issue for trial was either immaterial to causation or properly
excluded. Accordingly, plaintiff did not satisfy her burden
imposed by Code of Civil Procedure section 437c,
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subdivision (p)(2), and Starbucks is entitled to judgment as a
matter of law.
DISPOSITION
The judgment is affirmed. Starbucks is to recover its costs
on appeal.
GRIMES, J.
WE CONCUR:
STRATTON, P. J.
HARUTUNIAN, J.
 Judge of the San Diego Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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