From: Harrington Matthew P. <>
To: Tsachi Keren-Paz <>
Date: 22/05/2015 19:23:22 UTC
Subject: Re: Question on Californian contract/consumer law: Popovitch v Denny's Restaurant

I think I understand the court`s reasoning here and would be inclined to agree that there is no warranty claim under 2-314 or 2-315.

The merchantability claim won`t work because the essence of the claim is that the goods “are not fit for the purpose for which such goods are used.” In the case of food, that usually means that the food must be adulterated or tainted, i.e., not fit to eat. Here, she got the wrong food, but it was fit for the purposes for which sausage and eggs are used. The doctor`s report that the meat was not the cause of her illness was probably dispositive.

When in practise, I litigated a few food poisoning cases and found that plaintiffs who claim almost immediately to become ill are almost always destroying their own case. They think that by saying they ate something and then got sick, that they are connecting the food to the illness. (Hence, here, she says that the became nauseous almost immediately while sitting at the table.). In fact, however, it seems that most food poisoning takes about 12-24 hours to materialise. So, in this case, her claim that she ate the sausage and immediately became ill would indicate that it was either (a) not the sausage but some earlier-eaten food that causes the injury or (b) that the injury was psychological, in which case, as the court noted, there is no recovery in the absence of physical trauma. Thus, the ER report was fatal to her claim and her lawyers couldn`t probably find a doctor to dispute it.

So, the food was good. It was fit for its intended purpose even though it was not what she ordered.

The “fitness” claim (not to be confused with the “fit for ordinary purpose” language of 2-314, fails for a couple of reasons. First, most courts insist (and the drafters of the UCC say so in their comments) that the warranty is for a “particular purpose,” i.e. a purpose that is not the ordinary purpose for which the goods are used. So, if I buy a chainsaw to do ice sculpture and it doesn't do the job, but it does cut wood, I might have a breach of the fitness warranty, but not the merchantability warranty. California holds to this definition:

"A ‘particular purpose’ differs from the ordinary purpose for which the goods are used in that it envisages a specific use by the buyer which is peculiar to the nature of his business whereas the ordinary purposes for which goods are used are those envisaged in the concept of merchantability and go to uses which are customarily made of the goods in question."
American Suzuki Motor Corp. v. Superior Court (1995) 37 Cal.App.4th 1291, 1295, fn. 2.

More importantly, in order to succeed, the claimant has to show that the seller supplied the goods, and that the buyer relied on the seller to make the choice. It envisions a situation where the buyer says, “Here’s what I need to do. What tool should I use to do it?” If the seller says, “Here, use this.” Then we have (a) the seller furnishing and (b) the buyer relying. Reliance is the key. Arguably, there is no reliance here since the buyer was making the choice and not relying on the seller to pick for her.

As for the express warranty, I think it might be a winner, but one has to focus on the remedy. Here, she wants the big payout for the personal injury. She needs to show that the breach of the warranty was the cause of the personal injury. It's simple causation. So, while it might be true that the restaurant breached the express warranty to provide a meatless omelet, the damages are nothing. Having found that the meat was not the cause of any personal injury to her (see my tortured discussion above), the only damage recoverable would be warranty damages: That which she should have gotten, less that which she did --- which in this case would be the value of an omelet without meat less the value of an omelet with meat.

But, since meat-based foods would seem to be more expensive than meatless, the value of what she got (an omelet with sausage) would be more than the value of what she contracted for (a meatless omelet). From a pure warranty standard, therefore, she actually got more than she bargained for. So, in the absence of showing some unusual incidental damages, it would seem to me the best she could hope for is nominal damages.

Given that this case is really all about an attempt to play the big American personal injury litigation lottery, that's not what she wants. She wants a chance at thousands for her (non-existent) trauma. Having failed to show that the meat caused her any injury (she killed her own claim with the drama at the restaurant table that she was immediately sick), she is left with a simple warranty claim with expectation damages in contract ---- even if she was able to succeed on any of the warranties. Here, I think she could only make out the express warranty claim, and nothing more. Basically, the manager's decision not to charge her for the food, eliminated any damage claim whatsoever.

This was probably massively more than you wanted, but I really enjoyed your problem.

Glad to know if others see it the same way or am I raving.


Sent from Surface

From: Tsachi Keren-Paz<>
Sent: ‎Friday‎, ‎May‎ ‎22‎, ‎2015 ‎10‎:‎59‎ ‎AM

Dear all,

I’m struggling to understand a Californian case Popovitch v Denny's Restaurant (2005 Cal. App. Unpub. LEXIS 7173 (2005)) given in a contractual and consumer context in which the claimant ordered a vegetarian omelet, was assured by a waitress that the omelet is free of meat, found out, while eating, that the omelet did include bacon (part of which she already ate) but failed to receive any compensation.

Few aspects of the reasoning strike me as odd:

1. The court seems to suggest (based on a previous case) that under Californian law the claimant cannot state cause of action under a theory of breach of implied warranties of merchantability or fitness – is this true, and if so, why?

2. Why is this not a case of express warranty, given the fact the claimant chose from menu vegetarian omelet AND was re-assured by waitress the omelet is veg? This would make the reliance on the case excluding liability for implied warranty irrelevant?

3. Why did the court not find liability under Cal consumer protection law which seems to cover such situation (Cal Civ Code § 1780(a)(1) (1770(5))?

Do I miss anything, was the court mistaken, or is it really the case that Californian law does not provide remedy in such situations? The latter strikes me as very odd and problematic.

Many thanks,


Professor Tsachi Keren-Paz
Research Director, School of Law
Keele University
Staffordshire ST5 5BG
Office: CBC 2.015
Phone: 01782 734358
New book: Sex Trafficking: A Private Law Response (Routledge 2013)