Filed 8/18/20; Modified and Certified for Publication 8/24/20 (order attached)




IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                    SECOND APPELLATE DISTRICT

                              DIVISION SEVEN

 TINA SHIH,                                           B299329

         Plaintiff and Appellant,                     (Los Angeles County
                                                      Super. Ct. No. BC686784)
         v.

 STARBUCKS CORPORATION,

         Defendant and Respondent.


      APPEAL from a judgment of the Superior Court of
Los Angeles County, Laura A. Seigle, Judge. Affirmed.
      Law Offices of Jeffrey T. Bell, Jeffrey T. Bell and Rick Ma,
for Plaintiff and Appellant.
      Niddrie Addams Fuller Singh and Victoria E. Fuller; Price
Pelletier and Stephen T. Pelletier for Defendant and Respondent.
                       INTRODUCTION

       Tina Shih filed this action against Starbucks Corporation
after she spilled a cup of hot tea she purchased from a Starbucks
store and suffered second degree burns. Shih asserted causes of
action for products liability and negligence, alleging the cup was
defective. The trial court granted Starbucks’ motion for summary
judgment, ruling, among other things, any alleged defect in the
cup did not cause Shih’s injuries. We affirm.

      FACTUAL AND PROCEDURAL BACKGROUND

      A.     Shih Sues Starbucks After Spilling Hot Tea on
             Herself
      Shih filed this action on a form complaint, alleging
Starbucks “provided a defective coffee cup and sleeve that caused
the spillage of boiling hot coffee onto [her] thighs.” At her
deposition Shih testified she went to a Starbucks store with her
friend, and each of them ordered a cup of hot tea. When the two
drinks were ready, Shih retrieved them from the store’s pick-up
counter. Each drink had a lid and was “double-cupped,” meaning
the cup containing the hot tea was inserted into a second empty
cup. Neither drink, however, had a sleeve around the outer cup.
      When Shih picked up the drinks, she noticed they were
“extremely hot.” Nevertheless, she slowly carried the drinks, one
in each hand, to a table in the store and set them down. Shih sat
in a chair at the table, started talking with her friend, and
removed the lid on her drink. Shih then attempted, while seated,
to bend forward and take a sip from the open cup in front of her.
To accomplish this, Shih “tried to push the chair a little bit but




                                2
the chair got pushed out more than [she] anticipated.” Shih
“grabbed onto the table” to maintain her balance, which caused
her drink to spill. Shih alleged causes of action for products
liability and negligence.

      B.     The Trial Court Grants Starbucks’ Motion for
             Summary Judgment
       Starbucks filed a motion for summary judgment or in the
alternative for summary adjudication. Starbucks argued that
Shih could not prevail on her product liability cause of action
because it was based solely on Shih’s allegation Starbucks failed
to include adequate warnings when it served her drink and that
Starbucks did not have a duty to warn of obvious dangers
associated with a hot cup of tea. Starbucks also argued any
alleged defect in the cup did not cause Shih’s alleged injuries.
Starbucks argued Shih could not prevail on her negligence cause
of action because it was based solely on her allegation Starbucks
provided a defective cup.
       In opposition to the motion Shih argued that a drink in a
double cup instead of in a cup with a sleeve was a manufacturing
defect. Shih submitted a copy of Starbucks’ Beverage Resource
Manual, which stated that a “cup sleeve should be used” on most
hot beverages and that “short water-based beverages . . . are the
only cups that should be double-cupped, unless by customer
request.” Shih also argued the absence of a sleeve around the cup
and the fact Starbucks “filled the cup” to the brim caused her
injuries.
       The trial court granted the motion for summary judgment.
The court ruled that Shih failed to show there was a triable issue
of material fact regarding whether Starbucks had a duty to warn




                                3
of risks associated with the cup of tea, that Shih could not prove
the cup of tea had a manufacturing defect because Starbucks’
policy about when cups should include sleeves was “about
reducing waste and customer preference, not about a
manufacturing design,” and that neither the absence of a cup
sleeve nor the high level of tea in the cup was a cause of Shih’s
injuries. The court ruled Shih could not prevail on her negligence
cause of action for the same reasons. Shih timely appealed from
the ensuing judgment.

                            DISCUSSION

       A.     Standard of Review
        “Summary judgment is appropriate only ‘where no triable
issue of material fact exists and the moving party is entitled to
judgment as a matter of law.’” (Regents of University of
California v. Superior Court (2018) 4 Cal.5th 607, 618; see Valdez
v. Seidner-Miller, Inc. (2019) 33 Cal.App.5th 600, 607.) “To meet
its initial burden in moving for summary judgment, a defendant
must present evidence that either ‘conclusively negate[s] an
element of [each of] the plaintiff’s cause of action’ or ‘show[s] that
the plaintiff does not possess, and cannot reasonably obtain,’
evidence necessary to establish at least one element of [each]
cause of action.” (Henderson v. Equilon Enterprises, LLC (2019)
40 Cal.App.5th 1111, 1116; see Aguilar v. Atlantic Richfield
Co. (2001) 25 Cal.4th 826, 853-854.) “Once the defendant
satisfies its initial 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.’” (Henderson, at p. 1116;
see Aguilar, at p. 849.)




                                    4
      We review a trial court’s ruling on a motion for summary
judgment de novo. (Samara v. Matar (2018) 5 Cal.5th 322, 338.)
We consider “‘“‘“all the evidence set forth in the moving and
opposing papers except that to which objections were made and
sustained.”’ [Citation.] We liberally construe the evidence in
support of the party opposing summary judgment and resolve
doubts concerning the evidence in favor of that party.”’”
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 347; see
Hartford Casualty Ins. Co. v. Swift Distribution, Inc. (2014) 59
Cal.4th 277, 286.)

      B.       The Alleged Defects in the Cup Were Not a Legal
               Cause of Shih’s Injuries
       “‘A manufacturer, distributor, or retailer is liable in tort if a
defect in . . . its product causes injury while the product is being
used in a reasonably foreseeable way.’” (Demara v. The Raymond
Corp. (2017) 13 Cal.App.5th 545, 553; see Soule v. General Motors
Corp. (1994) 8 Cal.4th 548, 560; Collins v. Navistar, Inc. (2013)
214 Cal.App.4th 1486, 1500.) “A product can be defective in its
manufacture or design, or because it fails to include a warning
about known risks.” (Webb v. Special Electric Co., Inc. (2016)
63 Cal.4th 167, 179; see Trejo v. Johnson & Johnson (2017)
13 Cal.App.5th 110, 125 [“Products liability may be premised
upon a theory of design defect, manufacturing defect, or failure
to warn.”].) As with other tort claims, the plaintiff must show the
defect in the product was a legal or proximate cause of the
plaintiff’s injury. (See O’Neil v. Crane Co. (2012) 53 Cal.4th 335,
348 [“‘[a] manufacturer is liable only when a defect in its product
was a legal cause of injury’”]; Soule, at p. 572 [same]; Walt
Rankin & Associates, Inc. v. City of Murrieta (2000)




                                   5
84 Cal.App.4th 605, 626 [“‘“‘“[p]roximate cause is legal cause, as
distinguished from the laymen’s notion of actual cause”’”’”]; see
also Civ. Code, § 3333 [“For the breach of an obligation not
arising from contract, the measure of damages . . . is the amount
which will compensate for all the detriment proximately caused
thereby”]; Modisette v. Apple Inc. (2018) 30 Cal.App.5th 136, 155
(Modisette) [plaintiffs could not recover on products liability
causes of action where the defect was not the proximate cause of
their injures].)
        Starbucks met its burden of negating an element of Shih’s
products liability cause of action by showing the alleged defects in
the cup of tea it served Shih were not a proximate cause of Shih’s
injuries. “[P]roximate cause has two aspects. ‘“One is cause in
fact.”’” (State Dept. of State Hospitals v. Superior Court (2015) 61
Cal.4th 339, 352; accord, Modisette, supra, 30 Cal.App.5th at
p. 153.) 1 “The second aspect of proximate cause ‘focuses on public


1        Courts usually use the substantial factor test to determine
whether a product defect was a cause-in-fact of an injury. (See
Rutherford v. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 968
[“California has definitively adopted the substantial factor test
. . . for cause-in-fact determinations.”]; Novak v. Continental Tire
North America (2018) 22 Cal.App.5th 189, 197 [same]; Demara v.
The Raymond Corp., supra, 13 Cal.App.5th at p. 554 [applying
the substantial factor test to a design defect cause of action];
Garrett v. Howmedica Osteonics Corp. (2013) 214 Cal.App.4th
173, 190 [applying the substantial factor test to a manufacturing
defect cause of action]; Huitt v. Southern California Gas Co.
(2010) 188 Cal.App.4th 1586, 1604 [applying the substantial
factor test to a strict products liability action for failure to warn];
but see State Dept. of State Hospitals v. Superior Court, supra, 61
Cal.4th at p. 352, fn. 12 [stating that the substantial factor test




                                   6
policy considerations. Because the purported [factual] causes of
an event may be traced back to the dawn of humanity, the law
has imposed additional “limitations on liability other than simple
causality.’’’” (State Dept. of State Hospitals, at p. 353.) In such
situations, even “where the defendant’s conduct is an actual
cause of the harm, the defendant will nevertheless be absolved
because of the manner in which the injury occurred.” (Ibid.;
accord, Modisette, supra, 30 Cal.App.5th at p. 153; see Viner v.
Sweet (2003) 30 Cal.4th 1232, 1235, fn. 1 [“Causation analysis in
tort law generally proceeds in two stages: determining cause in
fact and considering various policy factors that may preclude
imposition of liability.”].)
       Shih alleged, without further explanation, Starbucks
served her tea in a defective cup and sleeve. (See Crown Imports,
LLC v. Superior Court (2014) 223 Cal.App.4th 1395, 1403 [“‘The
pleadings define the issues to be considered on a motion for
summary judgment.’”].) During her deposition she testified that
the drink was double-cupped and did not include a sleeve and
that the cup was filled to the brim with hot tea. 2
       The absence of a sleeve on the cup and presence of tea filled
to the top of the cup arguably were causes-in-fact of Shih’s
injuries. Shih argues that, “but for” the fact the cup was “too hot
and too full” to hold (although she was able to hold the cup and


only applies “where concurrent independent causes contribute to
an injury” and that “the ‘but for’ test governs” other situations].)
2     Although Shih also testified the lid was not securely
fastened to the cup, she does not argue Starbucks’ failure to
properly affix the lid caused her injuries. Nor can she. Shih
admitted that, before she spilled her drink, she removed the lid
because she knew the drink was hot.




                                  7
carry it to the table), Shih would not have “attempt[ed] to sip the
water from the cup” in the manner she did. Instead, Shih
presumably would have raised the cup to her mouth, and
therefore would not have leaned forward, would not have moved
the chair out from under her, would not have lost her balance,
would not have grabbed the table, and would not have knocked
her cup off the table and spilled hot tea on herself.
       But that’s a lot of “would not haves,” and because of that
the alleged defects in the drink were “too remotely connected
with [the plaintiff’s] injuries to constitute their legal cause.”
(Modisette, supra, 30 Cal.App.5th at p. 154; see ibid. [“‘“legal
responsibility must be limited to those causes which are so close
to the result, or of such significance as causes, that the law is
justified in making the defendant pay”’”]; Novak v. Continental
Tire North America (2018) 22 Cal.App.5th 189, 197 (Novak);
[“[t]he connection between defendants’ conduct and the injury
suffered is too attenuated” to satisfy the element of proximate
causation].) As the Restatement (Third) of Torts explains, a
defendant’s “liability is limited to those harms that result from
the risks that made the actor’s conduct tortious.” (Rest.3d Torts,
Products Liability, § 29.) A defendant “is not liable for harm
when the tortious aspect of the [defendant’s] conduct”—here, the
alleged defects in the drink—“was of a type that does not
generally increase the risk of [the plaintiff’s] harm.” (Id., § 30;
see State Dept. of State Hospitals v. Superior Court, supra, 61
Cal.4th at p. 359 (conc. opn. of Werdegar, J.) [“coincidental
causation—an allegation that some breach created an
opportunity for an injury to occur, without increasing the risk of
that injury occurring—is insufficient”]; Barenborg v. Sigma
Alpha Epsilon Fraternity (2019) 33 Cal.App.5th 70, 80, fn. 4




                                 8
[same]; cf. Crouch v. Trinity Christian Center of Santa Ana, Inc.
(2019) 39 Cal.App.5th 995, 1022 [“California law accepts and
follows the Restatement of Torts on the issue of superseding
cause”].)
       For example, in Novak, supra, 22 Cal.App.5th 189 the tires
of a car in which the decedent was a passenger blew out, causing
an accident. (Id. at pp. 192-193.) The decedent survived the
accident, but his injuries required him to use a motorized scooter
for mobility. Six years later he died after a car struck him while
he was on the scooter in a crosswalk. (Id. at p. 193.) The
decedent’s daughter sought to hold the tire manufacturer liable
for his death. The court in Novak held that, even assuming the
defendant’s failure to warn about risks in the tires “set in motion
a series of events that led to [the decedent’s] death and was, thus,
a ‘cause in fact’ of his death,” the “connection between defendants’
conduct and the injury suffered is too attenuated to show the
later accident to be within the scope of the risk created by
defendants’ conduct.” (Id. at pp. 196-197.)
       The same principle applies here. Shih spilled her drink
because, after she walked to the table with the two hot drinks in
her hands, put her drink down, and removed the lid, she bent
over the table, pushed out her chair, lost her balance, grabbed the
table to avoid failing, and knocked her drink off the table.
Although it is foreseeable that a customer could lose his or her
balance while seated at or rising from a table, such an event is
not “within the scope of the risk” (Novak, supra, 22 Cal.App.5th
at pp. 196-197) created by a restaurant’s decision to serve a hot
beverage that is filled to the brim or that does not have a sleeve. 3

3     Nor would a sleeve or a less-than-full cup mitigate the
injuries reasonably expected to occur from this type of accident.




                                 9
Starbucks’ conduct in serving Shih a full cup of hot tea without a
cup sleeve may have “set in motion” the particular “series of
events” that led to Shih spilling her drink on herself, just as in
Novak the tire manufacture’s failure to warn about problems
with its tires set in motion the series of events that culminated
years later in a car hitting the decedent in a crosswalk. But
neither the failure to use a cup sleeve nor the level to which a
coffeehouse employee fills a hot drink “generally increase[s] the
risk” a customer will accidentally lose his or her balance while
attempting to execute the kind of unorthodox drinking maneuver
Shih performed here, just as tire defects generally do not increase
the risk that a person who rides in a car with defective tires will
later be hit in a crosswalk by a different car. (See Rest.3d Torts,
supra, § 30, cmt. a [“An actor’s tortious conduct,” or a defect,
“may be a factual cause of harm . . . but not be of a type such as
to affect the probability of such harm occurring.”].)
       To be sure, the absence of a cup sleeve may have increased
the likelihood of certain other risks. For example, had Shih
burned her hand when she touched the cup or dropped the cup
because it was too hot for her to hold, Shih might have been able
to allege and show that any injuries she may have suffered were
proximately caused by the absence of a sleeve. But that is not
what happened. To the extent the absence of a cup sleeve and
the amount of tea in the cup caused Shih to lose her balance
(because she otherwise would have chosen a more traditional way
to drink hot tea), the course of events was not a foreseeable result
of the alleged defects. (See Modisette, supra, 30 Cal.App.5th at
p. 155 [where a driver crashed into the plaintiffs’ parked car
because he was distracted by his mobile phone, the phone
manufacturer’s failure to install lockout technology, even though




                                10
a cause-in-fact, was not a proximate cause of the crash because
“the gap between [the defendant’s] design” of the phone and the
accident was “too great for the tort system to hold [the defendant]
responsible”]; Wawanesa Mutual Ins. Co. v. Matlock (1997) 60
Cal.App.4th 583, 588 [individual who gave cigarettes to a minor
was not liable for property damage caused when the minor
dropped a lit cigarette and started a fire because the fire was not
“reasonably within the scope of the risk created by the initial
act”]; see also Palsgraf v. Long Island R.R. Co. (1928) 248 N.Y.
339, 339 [railway was not liable for the plaintiff’s injuries where
a railway guard attempted to push a passenger onto a train,
which caused the passenger to drop a package containing
fireworks, which exploded, which dislodged scales on the railway
platform that struck the plaintiff].)
       Shih argues whether the alleged defects in the cup were a
cause of her injuries is a question for the jury. “‘Ordinarily,
proximate cause is a question of fact which cannot be decided as a
matter of law. . . . Nevertheless, where the facts are such that
the only reasonable conclusion is an absence of causation, the
question is one of law, not of fact.’” (State Dept. of State Hospitals
v. Superior Court, supra, 61 Cal.4th at p. 353; see Modisette,
supra, 30 Cal.App.5th at p. 152; Novak, supra, 22 Cal.App.5th at
p. 197.) Here, even resolving all disputed factual issues and
making all reasonable inferences in Shih’s favor, Shih’s
undisputed testimony showed that the events leading to the tea
spill were, as a matter of law, too remote from the alleged defects
in the cup for Shih to prove proximate causation.




                                 11
      C.    Starbucks’ Alleged Negligence Was Not a Legal Cause
            of Shih’s Injuries
      Shih also alleged Starbucks was negligent because it served
her a defective cup. Because Starbucks met its burden of
showing the alleged defects in the cup were not a proximate
cause of her injuries, Starbucks also met its burden of showing
Starbucks’ alleged negligence was not a proximate cause of Shih’s
injuries. 4




4      Shih argues for the first time in her reply brief the trial
court should have denied Starbucks’ motion for summary
judgment because Starbucks’ separate statement of undisputed
material facts did not comply with Code of Civil Procedure
section 437c or Rule 3.1350(h) of the California Rules of Court.
Shih forfeited this argument, however, by failing to raise it in her
opening brief. (See Raceway Ford Cases (2016) 2 Cal.5th 161,
178 [“We generally do not consider arguments raised for
the first time in a reply brief.”]; Sweetwater Union High School
Dist. v. Julian Union Elementary School Dist. (2019) 36
Cal.App.5th 970, 987 [“Generally, arguments raised for
the first time in a reply brief are forfeited.”]; Mansur v. Ford
Motor Co. (2011) 197 Cal.App.4th 1365, 1387-1388 [in general,
“[w]e will not consider arguments raised for the first time in
a reply brief, because it deprives [respondents] of the opportunity
to respond to the argument”].)




                                12
                           DISPOSITION

      The judgment is affirmed. Starbucks’ motion to strike
portions of Shih’s reply brief is denied. Starbucks is to recover its
costs on appeal.




            SEGAL, J.




    We concur:




            PERLUSS, P. J.




            DILLON, J. *




*     Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.




                                 13
Filed 8/24/20 Modification and Publication Order
                  CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                   SECOND APPELLATE DISTRICT

                             DIVISION SEVEN


 TINA SHIH,                                        B299329

        Plaintiff and Appellant,                   (Los Angeles County
                                                   Super. Ct. No. BC686784)
        v.
                                                   ORDER MODIFYING OPINION,
 STARBUCKS CORPORATION,                            DENYING REHEARING, AND
                                                   CERTIFYING OPINION FOR
        Defendant and Respondent.
                                                   PUBLICATION [NO CHANGE IN
                                                   APPELLATE JUDGMENT]




THE COURT:

       The opinion in this case filed August 18, 2020 is modified
as follows:

     On page 3, in the second sentence of the first paragraph
under section B of the Factual and Procedural Background, the
phrase “product liability cause of action” is replaced with
“products liability cause of action.”
     On page 7, in the first sentence of the last paragraph, the
phrase “causes-in-fact” is replaced with “causes in fact.”
       On page 11, in the first line, which is within the bracketed
explanatory clause to the Modisette case, the phrase “a cause-in-
fact” is replaced with “a cause in fact.”
       In footnote 1, in the first sentence, the phrase “cause-in-
fact” is replaced with “cause in fact.”

       The opinion in this case filed August 18, 2020 was not
certified for publication. The court now certifies the opinion for
publication as specified in California Rules of Court, rule
8.1105(b).

      IT IS HEREBY CERTIFIED that the opinion meets the
standards for publication specified in California Rules of Court,
rule 8.1105(c); and

      ORDERED that the words “Not to be Published in the
Official Reports” appearing on page 1 of said opinion be deleted
and the opinion herein be published in the Official Reports.

       The appellant’s petition for rehearing is denied.

       This order does not change the appellate judgment.




PERLUSS, P. J.                     SEGAL, J.                       DILLON, J. *




*      Judge of the Los Angeles Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.




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