Harris et al v. Costco Wholesale Corporation et al

Filing 80

ORDER by Judge Claudia Wilken DENYING DEFENDANTS 75 MOTION TO DISMISS PLAINTIFFS SECOND AMENDED COMPLAINT. (ndr, COURT STAFF) (Filed on 9/13/2011)

1

IN THE UNITED STATES DISTRICT COURT

2

FOR THE NORTHERN DISTRICT OF CALIFORNIA

3
4
5
6
7
8
9

United States District Court
For the Northern District of California

10
11
12

No. C 10-04626 CW

RUTHELLEN HARRIS, individually
and as personal representative of
ROBERT JEAN HARRIS; HEATHER
HARRIS; JAMIE HARRIS AND GREG
HARRIS,

ORDER DENYING
DEFENDANTS’ MOTION
TO DISMISS
PLAINTIFFS’ SECOND
AMENDED COMPLAINT
(Docket No 75).

Plaintiffs,
v.
COSTCO WHOLESALE CORPORATION and
WAREHOUSE DEMO SERVICES, INC.,
Defendants.
________________________________/
INTRODUCTION

13
Defendants Costco Wholesale Corporation and Warehouse Demo
14
Services, Inc. move under Rule 12(b)(6) to dismiss Plaintiffs'
15
Second Amended Complaint for failure to state a claim.
16
(Docket No.75).

Plaintiffs oppose the motion.

Having considered

17
all of the papers filed by the parties, the Court DENIES
18
Defendants' motion to dismiss.
19
BACKGROUND
20
On June 5, 2010, Robert Jean Harris (decedent) died after
21
choking on a sample of tri-tip meat allegedly prepared and served
22
to him by Defendants at Costco Wholesale Corporation Store #422 in
23
South San Francisco, California.

Pursuant to California Code of

24
Civil Procedure section 377.30, Plaintiff Ruthellen Harris is
25
decedent's personal representative.

Plaintiffs Ruthellen Harris,

26
Heather Harris, Jamie Harris, and Greg Harris also proceed
27
individually as decedent's surviving spouse and children.
28

Cal.

1

Civ. Proc. Code § 377.60.

2

No. 1), which was later amended with leave of the Court (Docket

3

No. 47).

4

Defendants for failure to state a claim and ultimately dismissed

5

by the Court with leave to amend.

6

72).

7

Plaintiffs filed a complaint, (Docket

The First Amended Complaint (1AC) was challenged by

(Docket Nos. 50, 52, 53, 57,

Plaintiffs then filed a Second Amended Complaint (2AC)

8

against Defendants Costco Wholesale Corporation and Warehouse Demo

9

Services, Inc.

(Docket No. 74).

The 2AC contains five causes of

United States District Court
For the Northern District of California

10

action:

11

Defendants; (2) "Wrongful Death - Products Liability, Negligence"

12

against both Defendants; (3) "Negligent Retention of an

13

Independent Contractor" against Costco; (4) "Negligent

14

Supervision" against Costco; and (5) "Survival Action" against

15

both Defendants. (Docket No. 74).

16

claims on the grounds that they had no legal duty to decedent.

17

(Docket No. 75).

18

Defendants filed a joint reply.

(1) "Wrongful Death - Negligence" against both

19
20

Defendants moved to dismiss all

Plaintiffs filed a response to the motion and
(Docket Nos. 76, 77).

LEGAL STANDARD
A complaint must contain a “short and plain statement of the

21

claim showing that the pleader is entitled to relief.”

22

Civ. P. 8(a).

23

state a claim, dismissal is appropriate only when the complaint

24

does not give the defendant fair notice of a legally cognizable

25

claim and the grounds on which it rests.

26

Twombly, 550 U.S. 544, 555 (2007).

27

complaint is sufficient to state a claim, the court will take all

28

material allegations as true and construe them in the light most

Fed. R.

On a motion under Rule 12(b)(6) for failure to

2

Bell Atl. Corp. v.

In considering whether the

1

favorable to the plaintiff.

2

896, 898 (9th Cir. 1986).

3

to legal conclusions; “threadbare recitals of the elements of a

4

cause of action, supported by mere conclusory statements,” are not

5

taken as true.

6

(citing Twombly, 550 U.S. at 555).

9

However, this principle is inapplicable

Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949-50 (2009)

7
8

NL Indus., Inc. v. Kaplan, 792 F.2d

DISCUSSION
All Plaintiffs' claims allege that Defendants "negligently
and carelessly" provided a tri-tip sample measuring between three

United States District Court
For the Northern District of California

10

and five inches in length in violation of their own policy and

11

food and hospitality industry custom and practice.

12

Defendants argue that they did not have a legal duty to provide or

13

serve meat of a particular size.

14

2AC § 33, 34.

"The threshold element of a cause of action for negligence is

15

the existence of a duty to use due care."

16

22 Cal. 4th 550, 559 (2000), citing Bily v. Young & Co., 3 Cal.

17

4th 370, 397 (1992).

18

the context of special relationships, a person is responsible for

19

"an injury occasioned to another by his want of ordinary care or

20

skill in the management of his property or person."

21

Code § 1714(a).

22

care in a particular factual situation is a question of law for

23

the court to decide."

24

App. 4th 269, 278 (2004).

25

Paz v. State of Cal.,

Aside from affirmative duties that arise in

Cal. Civ.

"The existence of a legal duty to use reasonable

Vasquez v. Residential Inv., Inc., 118 Cal.

Exceptions to the general duty to use reasonable care are

26

determined by balancing public policy factors including the

27

foreseeability of the harm suffered, the closeness of connection

28

between the alleged breach and the harm, the certainty of the harm
3

1

suffered, the moral blame attached to the behavior alleged, the

2

consequences and burden to the community that would result from

3

finding a legal duty in the case, and the prevalence of insurance

4

for the risk involved.

5

(1968).

6

exception to the general duty of care, courts should create one

7

only where “clearly supported by public policy.”

8

Grocery Co., 51 Cal. 4th 764, 772 (2011), quoting Rowland, 69 Cal.

9

2d at 112; Merrill v. Navegar, 26 Cal. 4th 465, 477 (2001).

United States District Court
For the Northern District of California

10

Rowland v. Christian, 69 Cal. 2d 108, 112

In the absence of a statutory provision establishing an

Cabral v. Ralphs

The 1AC did not clearly define what legal duty Defendants

11

owed decedent; it used broad terms insufficient to put Defendants

12

on notice of the claims against them.

13

to include any facts that suggested a breach of the alleged duty,

14

or any information to support the claim that Defendants even

15

provided decedent with a meat product.

16

Moreover, Plaintiffs failed

Plaintiffs have cured these defects in the Second Amended

17

Complaint, asserting Defendants had a duty to use due care when

18

preparing and serving tri-tip samples for public consumption

19

without utensils.

20

Defendants who were merely actors in the supply chain and had no

21

involvement in preparing or serving the meat sample to the public.

22

Plaintiffs allege a food and hospitality industry custom and

23

practice that calls for cutting tri-tip into small pieces before

24

distributing it as samples for consumption.

25

duty to use due care in the preparation and service of food to the

26

public.

27

(1992), (quoting Mix v. Ingersoll Candy Co., 6 Cal. 2d 674, 680

28

(1923)).

They did not include several previously named

Food providers have a

Mexicali Rose v. Superior Court, 1 Cal. 4th 617, 623

4

1

Decedent was allegedly found in close proximity to the table

2

at which Warehouse Demo Services was providing tri-tip samples to

3

Costco customers.

4

stated that he removed a three to five inch piece of tri-tip from

5

decedent's throat using forceps, and another witness confirms the

6

size and type of meat.

7

cure the defects in the previous complaint.

8
9

United States District Court
For the Northern District of California

10

According to the complaint, a paramedic has

These additional facts are sufficient to

CONCLUSION
For the forgoing reasons, the motion to dismiss is DENIED.
IT IS SO ORDERED.

11
12
13

Dated: 9/13/2011

CLAUDIA WILKEN
United States District Judge

14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
5