Example of case study analysis

Jarek Molski, plaintiff vs. Cable Restaurant, defendant

1) Cause of action:

Jarek Molski has been disabled since the age of 18. Molski became a paraplegic because of a

motor cycle accident. So, Molski was confined to a wheelchair (- make this writing for at least 3

or 4 sentences; a summary of case background and reasons of the lawsuit)

2) Question of Fact:

A) Plaintiff, Mr. Jarek Molski • While entering and using the bathroom, Molski noticed the bathroom was not handicap accessible for a person in a wheelchair • The door pressure was too heavy and did not have a handicap accessible sign. Toilet seat was unreachable. • Cable’s restaurant was inspected for the ADA act and was told that their bathroom was not up the code of ADA. B) Defendant, Cable restaurant • Cable’s restaurant was looking at contractors to put their bathrooms up to the code • Molski and his lawyer Thomas frankovich was going around to

different location (This part of writing: at least half page writing: main arguments from the

plaintiff and defendant)

3) Question of Law:

Negligence & Res Ipsa Loquitur: The restaurant was able to predict that one day a handicapped person would come into the restaurant and use the restroom (continued writing…)

ADA act Even though the restaurant has been inspected by xxx. (Specific laws applied to the

case)

4) Final verdict:

Molski won the case. The appellate court reversed the decision the district court. The reason the ruling was in the plaintiff favor was, the appellate court felt there was no evidence at all (continued writing…)

5) My opinion of the verdict:

I believe that the final verdict was fair because (continued writing…)

(The verdict and rational for it. You must show your opinion if you agree or not about the final

verdict; about a half page writing)

6) Managers do’s: — List do’s and don’ts as many as possible but you are required three of

each)

· Have handicap accessible sings up

· Make sure the restaurant can cater to everyone’s need

· Abide by the codes and act Mangers don’ts:

· Don’t ignore code violations

· Assume that no one that is handicapped will patronize your business

· Neglect any area or problem that need to be monitored in you establishment

Required format:

· 3 pages in double space

· Font Size: 12, Font Type: Time New Roman

· 1” margin on all four sides

· Use your own words for the summary of case background, NOT TO COPY WORDS FROM THE CASES

5 of 13 DOCUMENTS

BARBARA MOORE, Plaintiff and Appellant, v. P.F. CHANGS CHINA BISTRO,
INC., Defendant and Respondent.

B193396

COURT OF APPEAL OF CALIFORNIA, SECOND APPELLATE DISTRICT,
DIVISION FOUR

2007 Cal. App. Unpub. LEXIS 6048

July 25, 2007, Filed

NOTICE: NOT TO BE PUBLISHED IN OFFICIAL REPORTS. CALIFORNIA RULES OF COURT, RULE
8.1115(a), PROHIBITS COURTS AND PARTIES FROM CITING OR RELYING ON OPINIONS NOT CERTIFIED
FOR PUBLICATION OR ORDERED PUBLISHED, EXCEPT AS SPECIFIED BY RULE 8.1115(B). THIS

OPINION

HAS NOT BEEN CERTIFIED FOR PUBLICATION OR ORDERED PUBLISHED FOR THE PURPOSES OF RULE
8.1115.

PRIOR HISTORY: [*1]
APPEAL from a judgment of the Superior Court of Los Angeles County, No. NC037265. Judith Vander Lans, Judge.

DISPOSITION: Affirmed.

CORE TERMS: food, restaurant, dish, summary judgment, allergic reaction, ingredient, shellfish, causes of action,
declaration, beef, triable, shrimp, issue of fact, strict liability, blood pressure, medication, personnel, allergic, opposing,
warning, inhibitor, fish, failure to warn, angioedema, diagnosis, allergen, exposure, consumer, illness, eating

COUNSEL: Law Office of Ronald Grzywinski and Ronald Grzywinski for Plaintiff and Appellant.

Law Office of Keith W. Farley and Keith W. Farley for Defendant and Respondent.

JUDGES: MANELLA, J.; EPSTEIN, P.J., WILLHITE, J. concurred.

OPINION BY: MANELLA

OPINION

Appellant Barbara Moore appeals from the trial court’s grant of summary judgment in favor of respondent P. F. Chang’s
China Bistro, Inc. (PFC) on her complaint for personal injury allegedly caused by an allergic reaction to a dish eaten at
PFC’s restaurant. 1 We conclude that Moore failed to raise a triable issue of fact concerning the presence of the
suspected allergen in the dish and affirm .

Page 1

1 “Chang’s” is sometimes spelled without the apostrophe. We adopt the spelling used in PFC’s brief.

FACTUAL AND PROCEDURAL BACKGROUND

In July 2005, Moore brought a complaint against PFC. The complaint alleged that on July 21, 2004, PFC served food
tainted with shrimp to Moore, who was allergic to shellfish. As a result, appellant suffered a reaction, which led to
serious injury. 2

2 The specific causes of action were labeled “Breach of Warranty,” “Negligence,” “Strict [*2] Liability,” and “Negligence Per Se.”

In March 2006, PFC moved for summary judgment. In its moving papers and exhibits, PFC established the following:
On July 21, 2004, at 11:00 a.m., Moore arrived at PFC’s restaurant with her friend, Juanita Wilson. Moore informed the
waitress that she was allergic to lobster and shrimp. Moore ordered two chicken dishes and beef with broccoli for
herself; Wilson ordered a shrimp special. Moore’s dishes were brought to the table first. Moore started to eat the beef
with broccoli. As soon as she tasted it, her mouth began to “feel[] funny” or “tingle.” Moore did not see or taste any
shrimp, fish, or shellfish in her food.

Restaurant personnel called paramedics, who administered Benadryl. In addition, they transported Moore to a hospital,
where she was intubated to keep her airway open. 3 At the hospital, Moore denied being exposed to any known
allergens. Hospital physicians diagnosed appellant as suffering from angioedema secondary to ACE inhibitor. 4

3 The leftover food was given to Wilson, who took it home and consumed it.

4 According to the hospital records, at the time of admission, Moore was taking Lotensin, an “angiotensin converting enzyme” or “ACE”
[*3] inhibitor, for high blood pressure. Her chief symptom was described as a “[s]wollen tongue.” She was intubated for one day in order to
keep her trachea open. During her stay at the hospital, she was examined by four different physicians. All referred to her condition as
“angioedema.” One did not diagnose a reason for the condition. The other three concluded that it was caused by ACE inhibitor, two using the
qualifier “likely.”

In its moving papers, PFC also set forth evidence to establish its general food handling practices at the restaurant in
question during the relevant period. 5 Beef and fish (including shellfish) served at the restaurant came from
Metropolitan Distributing Company. Chicken came from Center Meat Company. Metropolitan Distributing Company
and Center Meat Company cleaned and prepared the food items, and packaged them in separate bags. When received by
the restaurant, fish was put in the freezer and beef and chicken in the refrigerator. Before being cooked, each item was
prepared in its own area or station in the kitchen. Restaurant personnel used different colored cutting boards for each
item: blue for fish, red for beef, yellow for poultry, green for vegetables [*4] and white for “non-cooked” items. The
boards were kept in their own stations and were cleaned and sanitized after use.

5 The information was supplied by Celso Campos, Executive Chef for the restaurant patronized by Moore on the day of her illness.

When a patron ordered a specific dish, the items needed to prepare it were collected from their respective stations and
taken to the cooking station where a chef cooked the dish in a wok. The cooked food was placed on a serving dish and
kept on a hot shelf until served. Fish dishes were kept separate from beef and chicken dishes in the hot shelf area. Woks

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2007 Cal. App. Unpub. LEXIS 6048, *1

were cleaned after each use by scrubbing with water while being heated to 550 degrees Fahrenheit. Woks were cleaned
again at the end of the day by being heated to an even higher temperature, scrubbed and dried. Dishes and utensils were
run through an industrial washer twice after each use.

In her opposition to the summary judgment motion, Moore did not contest PFC’s summary of the events of July 12,
2005 or its description of its normal food-handling practices. The only fact Moore contested was the diagnosis of her
condition by hospital personnel. Her contrary evidence consisted of a declaration [*5] from M. Michael Glovsky, M.D.,
a physician board certified in the field of allergy and immunology. Dr. Glovsky stated he had reviewed Moore’s
medical history and records, including records from her treating physician. Based on the records and her “history of
previously having had several less severe episodes of allergic reaction to shellfish/iodine,” he opined that her
angioedema was “secondary to exposure to shellfish” rather than the ACE inhibitor.

The court granted the motion for summary judgment. In response to counsel’s argument that Dr. Glovsky’s declaration
was evidence that Moore’s condition was caused by eating a beef dish tainted with shrimp, the court noted that Dr.
Glovsky failed to identify “those portions of the medical records that support his . . . opinion.” The court further noted
that although Dr. Glovsky asserted the hospital misdiagnosed Moore, he “d[idn’t] really identify any evidence to support
his basis for [his] assertion[].”

DISCUSSION

I

Burden of Proof and Standard of Review

As the defendant, PFC’s burden on summary judgment was to show that no cause of action in Moore’s complaint had
merit. This can be accomplished by: (1) demonstrating that “one or more elements [*6] of [each] cause of action cannot
separately be established” or (2) “establish[ing] an affirmative defense to [each] cause of action.” (Smith v. Wells Fargo
Bank, N.A. (2005) 135 Cal.App.4th 1463, 1472; accord Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) A
defendant need not affirmatively negate an element of a cause of action if he or she can demonstrate “‘that the plaintiff
cannot establish at least one element of the cause of action’ [citation], which the defendant can do ‘by showing that the
plaintiff does not possess, and cannot reasonably obtain, needed evidence[.]'” (Smith v. Wells Fargo Bank., N.A., supra,
135 Cal.App.4th at p. 1473, quoting Aguilar v. Atlantic Richfield Co., supra, 25 Cal.App.4th at pp. 853-854.)

“[O]nce [*7] a moving defendant has ‘shown that one or more elements of the cause of action . . . cannot be
established,’ the burden shifts to the plaintiff to show the existence of a triable issue; to meet that burden, the plaintiff
‘may not rely upon the mere allegations or denials of its pleadings . . . but, instead, shall set forth the specific facts
showing that a triable issue of material fact exists as to that cause of action . . . .’ [Citations.]” (Merrill v. Navegar, Inc.
(2001) 26 Cal.4th 465, 476-477.) To successfully oppose summary judgment, “[i]t is not enough to produce just some
evidence. The evidence must be of sufficient quality to allow the trier of fact to find the underlying fact in favor of the
party opposing the motion for summary judgment.” (McGonnell v. Kaiser Gypsum Co. (2002) 98 Cal.App.4th 1098,
1105; accord Andrews v. Foster Wheeler LLC (2006) 138 Cal.App.4th 96, 108.)

On appeal after a motion for summary judgment has been granted, “we review the record de novo, considering all the
evidence set forth in the moving and opposition papers except that to which objections have been made and sustained.”
(Guz v. Bechtel National, Inc. (2000) 24 Cal.4th 317, 334.) We resolve [*8] doubts concerning the evidence in favor of
the party opposing summary judgment. (Lyle v. Warner Brothers Television Productions (2006) 38 Cal.4th 264, 274.)
“While [the moving party has] the burden of proving its right to summary judgment below, on appeal, [the opposing
party], as the appellant, bears the burden of showing error. [Citation.] In the absence of such a showing, we presume the
judgment is correct. [Citation.]” (Frank and Feedus v. Allstate Ins. Co. (1996) 45 Cal.App.4th 461, 474; accord Claudio
v. Regents of University of California (2005) 134 Cal.App.4th 224, 252.)

II

Page 3
2007 Cal. App. Unpub. LEXIS 6048, *4

PFC’s Negation of Element of Food Allergy Claim

In California, claims against a restaurant for serving otherwise wholesome food that could cause an allergic reaction in
susceptible persons are governed by comment j to the Restatement Second of Torts section 402A. (Livingston v. Marie
Callenders, Inc. (1999) 72 Cal.App.4th 830, 838; see Oakes v. E. I. Du Pont de Nemours & Co., Inc. (1969) 272
Cal.App.2d 645, 650 [allergic reaction to weed spray]; Anderson v. Owens-Corning Fiberglas Corp., supra, 53 Cal.3d
at pp. 995-998 [confirming that California courts follow the principles set forth in section 402A].) Section 402A, [*9]
which covers product liability, provides that where a product includes an ingredient that causes an allergic reaction, it
may be considered defective if no warning was given and the defendant may be liable on a strict liability/failure-to-warn
theory. 6 The rule set forth in section 402A states that a warning is required when “the product contains an ingredient to
which a substantial number of the population are allergic”; its danger “is not generally known, or if known is one which
the consumer would reasonably not expect to find in the product”; and the seller “has knowledge, or by the application
of reasonable, developed human skill and foresight should have knowledge, of the presence of the ingredient and the
danger.” 7 (Rest.2d Torts, § 402A, com. j, p. 353.) Thus, to support a claim for strict liability/failure-to-warn based on
allergic reaction to a food item, the plaintiff must establish, in addition to causation and damages, that: (1) “the
defendant’s product contained ‘an ingredient to which a substantial number of the population are allergic'”; (2) “the
ingredient ‘is one whose danger is not generally known, or if known is one which the consumer would reasonably not
expect [*10] to find in the product'”; and (3) “the defendant knew or ‘by the application of reasonable developed human
skill and foresight should have know[n], of the presence of the ingredient and the danger.” (Livingston v. Marie
Callenders, Inc., supra, 72 Cal.App.4th at p. 839, quoting Rest.2d Torts, § 402A, com. j, p. 353.)

6 None of the causes of action in Moore’s complaint are entitled “failure to warn.” However, the claims for breach of warranty and strict
liability include allegations that she informed PFC personnel of her allergy and that she did not know or have reason to know of the true
condition of the food served to her. Failure to warn of the alleged presence of seafood in the dish can be inferred from these allegations. The
complaint also included two causes of action based on negligence. Proof of negligence is not required to establish liability under a failure to
warn theory. (See Carlin v. Superior Court (1996) 13 Cal.4th 1104, 1112, quoting Anderson v. Owens-Corning Fiberglas Corp. (1991) 53
Cal.3d 987, 1002-1003 [“[I]n strict liability, as opposed to negligence, the reasonableness of the defendant’s failure to warn is immaterial . . .
. [A] manufacturer could not escape liability [*11] under strict liability principles merely because its failure to warn of a known or
reasonably scientifically knowable risk conformed to an industry-wide practice of failing to provide warnings that constituted the standard of
reasonable care.”].)

7 The Restatement Third of Torts: Products Liability contains similar language: “The general rule in cases involving allergic reactions is that
a warning is required when the harm-causing ingredient is one to which a substantial number of persons are allergic. . . . [P] The ingredient
that causes the allergic reaction must be one whose danger or whose presence in the product is not generally known to consumers. . . . When
the presence of the allergenic ingredient would not be anticipated by a reasonable user or consumer, warnings concerning its presence are
required.” (§ 2, com. k, p. 32.)

The element essential to all of Moore’s claims at issue here is the presence or absence of the alleged allergens —
shellfish — in the beef dish. As courts have recognized, establishing the presence or absence of a harmful substance in a
restaurant dish can be problematic if the food itself is not available for analysis. (See, e.g., Minder v. Cielito Lindo
Restaurant (1977) 67 Cal.App.3d 1003, 1008; [*12] Wilson v. Circus Circus Hotels, Inc. (1985) 101 Nev. 751 [710
P.2d 77, 79]; Woolworth Company v. Garza (Tex. App. 1965) 390 S.W.2d 90, 93.) The presence of the injury-causing
ingredient may be shown by circumstantial evidence. (Ibid.) However, under the generally accepted rule, “‘[t]he
unwholesome character of food is not established, nor is a prima facie case made, merely by showing that the plaintiff
became sick after eating it.'” (Minder v. Cielito Lindo Restaurant, supra at p. 1008, quoting Franke’s Inc. v. Bennett
(1941) 201 Ark. 649 [146 S.W.2d 163, 164].) Such evidence “merely shows a sensitivity of the plaintiff on the
particular occasion and perhaps not even this because something else could well have brought about the reaction.'”
(Woolworth Company v. Garza, supra at p. 93, quoting Keeton, Products Liability, 41 Tex. Law Review 855.) To be
sufficient, “‘the circumstantial evidence must exclude other extrinsic causes of the accident [or illness].'” (Wilson v.
Circus Circus Hotels, Inc., supra, at p. 79, quoting Vuletich v. Alivotvodic (Ill. App. 1979) 392 N.E.2d 663, 667.)

Page 4
2007 Cal. App. Unpub. LEXIS 6048, *8

In Minder v. Cielito Lindo Restaurant, the Court of Appeal identified five categories of evidence helpful [*13] in
proving the injurious nature of food ingested at a restaurant where the food is not available for scientific analysis: (1)
evidence the food was “outwardly deleterious”; (2) evidence that others who ate the same food at approximately the
same time as the plaintiff became similarly ill; (3) evidence that others who did not become ill ate everything the
plaintiff ate except the suspect item; (4) evidence tending to exclude other causes of the plaintiff’s illness; and (5)
evidence of unsanitary conditions in the restaurant’s kitchen. (67 Cal.App.3d at pp. 1008-1010.) Moore conceded there
was nothing “outwardly deleterious” about the dish; she neither saw nor tasted any seafood in it. Unlike Minder, this is
not a food poisoning case. Accordingly, categories (1), (2) and (3) are not helpful.

With respect to categories (4) and (5), PFC established through its moving papers and exhibits its general procedures for
food handling and the care restaurant personnel took to keep different types of food items separate. (See Brown v.
General Foods Corp. (1978) 117 Ariz. 530 [573 P.2d 930, 934] [evidence of manufacturer’s quality control procedures
constitutes circumstantial evidence tending to [*14] show improbability of contamination of food product alleged by
plaintiff]; accord Hazelton v. Safeway Stores, Inc. (1987) 12 Kan.App.2d 377 [745 P.2d 309, 313-314].) It also
established through the hospital records that the angioedema suffered by Moore was a reaction to the blood pressure
medication she was taking at the time. Indeed, this was the diagnosis of three of the physicians who examined her while
she was hospitalized. This showing was sufficient to demonstrate that a vital element of Moore’s claim could not be
established and to shift the burden to Moore to prove the existence of a triable issue of fact concerning the presence of
shellfish in her beef dish. (See Merrill v. Navegar, Inc., supra, 26 Cal.4th at pp. 476-477.)

III

Inadequacy of Moore’s Evidence

Moore attempted to meet her burden by submitting Dr. Glovsky’s declaration concerning the etiology of her medical
condition. Following a brief description of his credentials and the medical records reviewed, Dr. Glovsky expressed his
opinion and the basis for it in a single sentence: “[Moore’s] history of previously having had several less severe episodes
of allergic reaction to shellfish/iodine, and the records reviewed by [*15] me provide the basis of my opinion that the
cause of [Moore’s] admission to [the hospital] on July 21, 2004, was not as a result of suffering from angiodema [sic]
‘most likely’ secondary to an ACE Inhibitor (Lotensin) as the [hospital] records suggest, but from angiodema [sic]
secondary to exposure to shellfish at [PFC’s restaurant].”

In opposing summary judgment, “[p]laintiffs cannot manufacture a triable issue of fact through use of an expert opinion
with self-serving conclusions devoid of any basis, explanation, or reasoning.” (McGonnell v. Kaiser Gypsum Co., supra,
98 Cal.App.4th at p. 1106; accord Andrews v. Foster Wheeler LLC, supra, 138 Cal.App.4th at p. 108.) An expert
declaration is of no evidentiary value where it is “rendered without a reasoned explanation of why the underlying facts
lead to the ultimate conclusion” because “an expert opinion is worth no more than the reasons and facts on which it is
based.” (Bushling v. Fremont Medical Center (2004) 117 Cal.App.4th 493, 510.) When an expert can attest to nothing
more than the possibility that the plaintiff’s condition is indicative of the presence of a harmful ingredient in the
defendant’s product, the plaintiff’s case is [*16] not supported. (See, e.g., Minder v. Cielito Lindo Restaurant, supra, 67
Cal.App.3d at p. 1010 [where expert’s testimony indicated it was “just as logical” that plaintiff’s condition resulted from
a source other than food served in defendant’s restaurant, plaintiff’s claim was not supported]; Rexall Drug Company v.
Nihill (9th Cir. 1960) 276 F.2d 637, 644 [where plaintiff claimed her hair loss was due to deleterious ingredient in
defendant’s product but “opinions expressed by . . . medical witnesses were in the realm of possibility and not
probability,” plaintiff did not establish prima facie case]; see also Bushling v. Fremont Medical Center, supra, 117
Cal.App.4th 510 [where plaintiff awoke after surgery with chronic pain in his shoulder, court rejected opinions of expert
physicians who “assume[d] the cause from the fact of the injury” and presented “nothing more than a statement that the
injury could have been caused by defendants’ negligence in one of the ways they specif[ied]”]; Andrews v. Foster
Wheeler LLC, supra, 138 Cal.App.4th at p. 108 [“The mere ‘possibility’ of exposure does not create a triable issue of
fact.”].) “An expert’s speculations do not rise to the status of [*17] contradictory evidence, and a court is not bound by
expert opinion that is speculative or conjectural.” (McGonnell v. Kaiser Gypsum Co., supra, 98 Cal.App.4th at p. 1106.)

Page 5
2007 Cal. App. Unpub. LEXIS 6048, *12

Other than the fact that Moore had suffered adverse consequences from shellfish in the past, Dr. Glovsky provided no
“basis, explanation or reasoning” for his conclusion that Moore’s medical condition on July 21, 2004 was due to an
allergic reaction to shellfish, as opposed to a side effect of blood pressure medication. He failed to explain why he
believed his diagnosis of allergic reaction was more likely than the hospital physicians’ diagnoses of adverse reaction to
medication. He did not, for example, discuss the nature, timing or duration of Moore’s symptoms or state why they were
more or less indicative of the accuracy of one or the other diagnosis. He made no mention of the blood pressure
medication or the amount of time Moore had taken it. Nor did he discuss the treatment administered to Moore or
whether her reaction to it affected his opinion. 8 In many respects, Dr. Glovsky’s declaration was similar to the expert
declaration rejected by the court in McGonnell v. Kaiser Gypsum Co., supra, where summary judgment [*18] was
based on lack of evidence that the plaintiff was exposed to the defendants’ asbestos products. The plaintiff submitted an
expert declaration expressing the opinion that “it was more likely than not” the defendants’ products had been used at a
specific job site. The opinion was purportedly based on the project’s “‘job specifications'” but the expert failed to specify
how the specifications linked the defendant’s products to the project and the declaration, therefore, “raise[d] more
questions than it answer[ed].” (98 Cal.App.4th at p. 1106.) Dr. Glovsky’s opinion was similarly marred by a failure to
explain his conclusion and why it was more likely than other, more innocent explanations for Moore’s condition.
Although we give the party opposing summary judgment the benefit of every doubt, Dr. Glovsky’s declaration is
insufficient to create a triable issue of fact concerning the presence of shellfish in the dish served to Moore.

8 The record reflects that in addition to Benadryl, Moore was given Tagamet and prednisone.

IV

Res Ipsa Loquitur

Moore contends this is an appropriate situation for application of the doctrine of res ipsa loquitur. For that doctrine to
apply, certain conditions [*19] must be met: “‘(1) the accident must be of a kind which ordinarily does not occur in the
absence of someone’s negli gence; (2) it must be caused by an agency or instrumentality within the exclusive control of
the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff.'” (Ybarra
v. Spangard (1944) 25 Cal.2d 486, 489; accord Blackwell v. Hurst (1996) 46 Cal.App.4th 939, 943.) Moore contends
that “the only way [she] could have had an allergic reaction at [PFC’s] restaurant would have been to eat a non-shrimp
dish that was tainted with shrimp.” This presupposes that Dr. Glovsky’s opinion concerning the reason for her medical
crisis on July 21, 2004 was sufficient to establish that Moore’s condition was precipitated by exposure to an allergen.
For the reasons discussed, it was not. Accordingly, the “accident” in question was Moore becoming ill while eating at
PFC’s restaurant. As her illness could have been the consequence of many factors not attributable to PFC or the food it
served, including her blood pressure medication, there is no basis for the res ipsa loquitur presumption. (See Minder v.
Cielito Lindo Restaurant, supra, 67 Cal.App.3d at p. 1008 [*20] [prima facie case is not made merely by establishing
that plaintiff became sick after eating at defendant’s restaurant].) Accordingly, the trial court did not err in refusing to
apply it.

DISPOSITION

The judgment is affirmed.

MANELLA, J.

We concur:

EPSTEIN, P.J.

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2007 Cal. App. Unpub. LEXIS 6048, *17

WILLHITE, J.

Page 7
2007 Cal. App. Unpub. LEXIS 6048, *20