Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. RCVRS101542, Kenneth Andreen, Judge. (Retired Associate Justice of the Court of Appeal, Fifth Appellate District, assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
The Marks Law Firm, Scott A. Marks and Lindsay Joachim, for Plaintiffs and Appellants.
Lewis Brisbois Bisgaard & Smith, James C. Packer and Traci Whaley Patino, for Defendant and Respondent.
OPINION
McKinster, J.
In a wrongful death action, the two daughters (plaintiffs) of a woman who died as a result of choking on food while eating at a restaurant sued the owner of the restaurant (defendant). Plaintiffs alleged defendant’s negligence caused their mother’s death. The trial court sustained defendant’s demurrer to plaintiffs’ complaint without leave to amend. Plaintiffs contend the court erred by sustaining defendant’s demurrer because the court applied an incorrect interpretation of the element of duty when analyzing the complaint. We affirm the judgment.
FACTS
On February 22, 2007, plaintiffs filed a wrongful death action against defendant. The complaint alleged that on May 5, 2005, plaintiffs’ mother was eating in defendant’s restaurant, in San Bernardino County, when a piece of meat became lodged in her throat. A friend who was dining with plaintiffs’ mother cried out for assistance. No one at the restaurant administered first aid to plaintiffs’ mother as she choked, but employees of the restaurant called 911 and requested medical assistance. Paramedics attempted to resuscitate plaintiffs’ mother, but she died at a local hospital a few days after this incident due to the lack of oxygen while choking. Plaintiffs alleged that if defendant had administered first aid then their mother would not have died and that it was defendant’s negligence that caused their mother’s death.
On May 14, 2007, defendant filed a demurrer to plaintiffs’ complaint. Defendant cited the case of Breaux v. Gino’s, Inc. (1984) 153 Cal.App.3d 379 (Breaux). Defendant argued that the duty a restaurant owes to a choking patron is limited to summoning medical assistance and, therefore, the complaint failed to state facts sufficient to constitute a cause of action. The trial court indicated that it would sustain the demurrer with leave to amend, but plaintiffs’ attorney stated there were no additional facts to offer, so the trial court sustained the demurrer without leave to amend.
DISCUSSION
1.
LEGAL BACKGROUND AND PLAINTIFFS’ CONTENTION
Plaintiffs contend a restaurant proprietor owes a duty to administer first aid to a choking patron. The relevant statute that was in effect in May 2005 was former Health and Safety Code section 114180 (repealed by Stats. 2006, ch. 23, § 1), which addressed choking in restaurants. A previous version of the statute, former section 28689 (repealed by Stats. 1984, ch. 256, § 3) was examined in the case of Breaux, supra, 153 Cal.App.3d at page 381. In Breaux, the court determined a restaurant proprietor’s duty to a choking patron is limited to summoning medical assistance. (Id. at p. 382.) Soon after the court issued its opinion in Breaux, the Legislature repealed former section 28689 and replaced it with former section 27637 (repealed by Stats. 1995, ch. 415, § 170).
All further statutory references are to the Health and Safety Code unless otherwise indicated.
Plaintiffs’ first argument is that when the Legislature replaced the statute they expressed an implicit intent to supersede Breaux and, therefore, restaurant proprietors must administer first aid to a choking patron. Second, plaintiffs assert the common law establishes a duty that restaurant proprietors must administer first aid to choking patrons.
“‘On review of an order sustaining a demurrer without leave to amend, our standard of review is de novo, “i.e., we exercise our independent judgment about whether the complaint states a cause of action as a matter of law.” [Citation.]’ [Citation.] ‘“‘We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.]’”’” (Holcomb v. Wells Fargo Bank, N.A. (2007) 155 Cal.App.4th 490, 495.) “When a trial court grants a plaintiff leave to amend, but the plaintiff elects not to do so, ‘it is presumed that the complaint states as strong a case as is possible [citation]; and the judgment of dismissal must be affirmed if the unamended complaint is objectionable on any ground raised by the demurrer. [Citations.]’ [Citation.] Accordingly, ‘“we do not consider the possibility that any defects in it could be cured by amendment . . . .”’ [Citation.]” (Id. at pp. 495-496.)
2.
BREAUX WAS NOT SUPERSEDED
Plaintiffs contend that the trial court erred in sustaining defendant’s demurrer because when the Legislature replaced former section 28689, following the opinion in Breaux, the Legislature expressed an implicit intent to impose a duty on restaurant proprietors to administer first aid to patrons choking on food. We disagree.
Former section 114180, which was in effect in May 2005, required the Department of Health Services (the department) to “adopt and approve first aid instructions designed and intended for use in removing food that may become stuck in a person’s throat.” (Former § 114180, subd. (a).) The statute also required the department to provide every eating establishment with the first aid instructions, which were then required to be posted in a conspicuous place in order to aid anyone who may attempt to provide first aid to a person who is choking. (Former § 114180, subd. (b).) Former section 114180, subdivision (d), provided: “Nothing in this section shall impose any obligation on any person to remove, assist in removing, or attempt to remove food that has become stuck in another person’s throat. In any action for damages for personal injuries or wrongful death, neither the proprietor nor any person who removes, assists in removing, or attempts to remove the food in accordance with instructions adopted by the department shall be liable for any civil damages as a result of any acts or omissions by the person in rendering emergency assistance.”
In Breaux, an assistant restaurant manager called for an ambulance immediately after he noticed a patron was choking. (Breaux, supra, 153 Cal.App.3d at p. 381.) No one attempted to administer first aid to the customer, who later died. (Ibid.) The appellate court quoted former section 28689, which, similar to former section 114180, did not impose any obligation to remove or attempt to remove food that had become lodged in another person’s throat. (Breaux, at pp. 381-382.) The court held that the “statute establishes as a matter of law that a restaurant meets its legal duty to a patron in distress when it summons medical assistance within a reasonable time.” (Id. at p. 382.)
In Delgado v. Trax Bar & Grill (2005) 36 Cal.4th 224, at page 241, our Supreme Court quoted Breaux and noted that “‘it long has been recognized that restaurant proprietors have a special-relationship-based duty to undertake relatively simple measures such as providing “assistance [to] their customers who become ill or need medical attention and that they are liable if they fail to act.” [Citations.]’” The court concluded that “‘[s]uch measures may include telephoning the police or 911 for assistance.’” (Ibid.; see also Rotolo v. San Jose Sports & Entertainment, LLC (2007) 151 Cal.App.4th 307, 331 (Rotolo).)
We are bound to follow our Supreme Court’s determination that the only legal duty imposed upon restaurant proprietors in regard to a choking patron is an obligation to summon medical assistance. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455 [duty to follow binding precedent].) Accordingly, we conclude Breaux was not superseded when the Legislature replaced former section 28689 because our Supreme Court has determined that the opinion in Breaux provides the proper interpretation of the law as it existed in 2005.
Furthermore, we do not address what the Legislature’s intent may have been when it replaced former section 28689 because the plain language of the statute in effect in 2005 provided, “Nothing in this section shall impose any obligation on any person to remove, assist in removing, or attempt to remove food that has become stuck in another person’s throat.” (Former § 114180, subd. (d).) This language clearly sets forth the rule that there is no duty to administer first aid to a choking restaurant patron, and “‘“[i]f the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to . . . indicia of the intent of the Legislature . . . .”’ [Citation.]” (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735.) Accordingly, we find plaintiffs’ argument unpersuasive.
3.
COMMON LAW
Plaintiffs assert the common law establishes an independent duty that restaurant proprietors administer first aid to choking patrons. We disagree.
Plaintiffs cite Brooks v. E.J. Willig Truck Transp. Co. (1953) 40 Cal.2d 669, which concerns an automobile collision, to support their argument concerning the common law.
Under the common law of this state, “a landlord has a duty to maintain the premises in a reasonably safe condition and may have a duty to prevent foreseeable harm, such as a criminal attack by a third party, from occurring to those using the premises, or to take certain steps to come to the aid of an invitee in the face of imminent or ongoing danger. In regard to the extent of the duty of a landlord or business proprietor to come to the aid of a sick or injured invitee, courts have found that sound policy limits the extent of this duty to promptly summoning emergency services.” (Rotolo, supra, 151 Cal.App.4th at pp. 314-315.)
Plaintiffs cite no precedent, and we have found none, supporting the argument that the common law imposes a duty upon restaurant proprietors to administer first aid to a choking patron. Accordingly, we find plaintiffs’ argument unconvincing.
Plaintiffs note that our state Constitution provides that all people have the inalienable rights to enjoy and defend life and pursue and obtain safety. (Cal. Const., art. I, § 1.) Plaintiffs contend these inalienable rights compel a finding “that a restaurant must fulfill its common law duty to render basic first aid assistance in accordance with the instructions identified in the statute.” Contrary to plaintiffs’ position, we have concluded ante that there is no common law duty requiring restaurant proprietors to administer first aid to a choking patron.
Moreover, to the extent an argument could be made that a duty to administer first aid is established by our state Constitution, we note that “[n]o case has ever held that [article I, section 1, of the California Constitution] enunciating the inalienable right[s] to obtain safety and [life] is self-executing in the sense that it gives rise, in and of itself, to a private right of action for damages or an affirmative duty on the part of the state to take particular steps to guarantee the enjoyment of safety or [life] by all citizens. [Citations.]” (Clausing v. San Francisco Unified School Dist. (1990) 221 Cal.App.3d 1224, 1237, fn. 6.) Accordingly, we find plaintiffs’ argument unpersuasive.
DISPOSITION
The judgment is affirmed. Defendant is awarded its costs on appeal.
We concur: Hollenhorst, Acting P.J., Miller, J.