Opinion
A129689
09-01-2011
ROBIN E. FOOR, Plaintiff and Appellant, v. AMICI'S EAST COAST PIZZERIA, Defendant and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(San Mateo County Super. Ct. No. CIV485205)
While dining at Amici's East Coast Pizzeria (Amici's), plaintiff Robin E. Foor bit into a whole olive in an antipasto salad and broke a tooth on the olive pit. He sued Amici's for negligence and intentional tort and sought punitive damages. The trial court sustained Amici's demurrer to the operative third amended complaint without leave to amend and entered judgment for Amici's.
Foor appeals. He contends the operative complaint stated claims for negligence and intentional tort. He also seeks leave to amend his complaint to state causes of action for res ipsa loquitur, strict liability, and breach of the implied warranty of fitness for human consumption. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In June 2007, Foor and his wife were dining at an Amici's restaurant in San Mateo. His wife ordered an antipasto salad which contained "many olives and many pits." Foor bit into an olive and cracked his tooth.
In June 2009, Foor filed a form complaint against Amici's alleging causes of action for negligence and intentional tort. Foor also sought punitive damages. Amici's demurred to the original complaint and moved to strike the punitive damages allegations, prompting Foor to file a first amended complaint shortly before the hearing on the demurrer. The first amended complaint was similar to the original complaint but added allegations that Amici's "knew that many customers in the past had broken their teeth on the olive pits negligently left in salads" and that Foor's "tooth was extracted" as a result of the injury. Amici's demurred to the first amended complaint and moved to strike the punitive damages allegations. The court sustained the demurrer to the negligence cause of action with leave to amend and granted the motion to strike with leave to amend. The court overruled Amici's demurrer to the intentional tort claim because of a procedural defect.
The court overruled the demurrer to the intentional tort claim because Amici's "failed to specify any basis for the [d]emurrer to this [c]ause of [a]ction." The court explained that Amici's "incorporate[ed] by reference . . . its arguments with respect to the defect in the negligence cause of action," which "fail[ed] to support a [d]emurrer to a [c]ause of [a]ction not based on negligence."
Plaintiff's second amended complaint contained allegations virtually identical to those in the original and first amended complaints. Amici's again demurred and moved to strike the punitive damages allegations. At the hearing on the demurrer, the court noted, "I still am somewhat confused by the fact that if somebody's ordering an olive salad, olives have pits. That's not the same thing as if the olive pit had been in a pizza, or a bone had been in the salad, or something of that sort." Following the hearing, the court sustained the demurrer to both causes of action with leave to amend and took judicial notice of the facts that "olive pits in olives are natural to the olive" and "a whole olive may have a pit in it."
Hoping the third time would be the charm, Foor filed a third amended complaint alleging claims for negligence, intentional tort, and punitive damages. The operative complaint alleged Foor's wife ordered the antipasto salad and that Foor did not know the salad contained olives with pits and did not expect or "reasonably anticipate that whole olives, served in the salad, would contain pits." According to the operative complaint, the olives were obscured by "large pieces of lettuce." Foor bit into "a hidden olive containing a pit" and cracked his tooth, requiring the tooth to be removed and replaced.
The negligence claim alleged Amici's "breached their duty to exercise reasonable care in preparing the salad and served a salad with olives containing pits, without warning that the olives contained pits." The claim further alleged Amici's "deliberately left many pits in the salad, knowing the pits were there. The salad contained large pieces of lettuce that hid the small kalamata olives, so that an unsuspecting customer could not see a small olive under the lettuce when eating the salad." Finally, the complaint alleged Amici's knew that other customers had been injured when biting into olives in antipasto salads but "continued to prepare [a]ntipasto [s]alads in a careless manner, putting olives with pits in the salads, creating a foreseeable risk of harm to customers."
The second cause of action for intentional tort restated many of the allegations in the negligence claim, but also alleged Amici's "intentionally and/or recklessly specified, prepared and served an [a]ntipasto [s]alad containing many small hidden kalamata olives with many pits, knowing that such olives with pits will break the teeth of the customers eating the salad" and that Amici's acted "with a willful, reckless and conscious disregard for the safety and rights of others."
Amici's demurred, contending both claims failed to state facts sufficient to constitute a cause of action under Mexicali Rose v. Superior Court (1992) 1 Cal.4th 617, 633 (Mexicali Rose). Amici's argued the operative complaint failed to state a cause of action that it negligently prepared and served the antipasto salad because "olives are a common ingredient" in Greek or Mediterranean-themed salads. According to Amici's, olive pits exist naturally in olives and a whole olive may contain a pit; therefore, it is "reasonably anticipated, as well as clearly expected, that a salad, especially an [a]ntipasto [s]alad, will include olives as an ingredient in that salad and a consumer upon presentation of 'many olives' in a salad can reasonably anticipate having whole olives that may be unpitted."
Amici's also argued Foor failed to state a claim for intentional tort because "[t]here are no facts demonstrating that by preparing and serving a salad that included whole olives with pits . . . that . . . Amici's deliberately intended to cause injury" to Foor. Similarly, Amici's contended Foor did not allege facts demonstrating that it "served its salad by strategically placing the pieces of lettuce in the salad in such a way to purposefully hide [the olives] from a customer's point of view." Amici's requested judicial notice of the court's previous order taking judicial notice of the fact that pits exist naturally in olives and the fact that whole olives may contain pits. Finally, Amici's moved to strike the punitive damages allegations. Foor opposed the demurrer and the motion to strike.
In a tentative ruling, the court sustained Amici's demurrer to both the negligence and intentional tort claims without leave to amend. With respect to the negligence claim, the court determined "[t]he cause of [Foor's] alleged injury was an unpitted [k]alamata olive . . . in an [a]ntipasto [s]alad. Thus, the presence of the substance that caused the injury to the patron was natural to the preparation of the food served." Relying on Mexicali Rose, supra, 1 Cal.4th at page 633, the court determined Foor could pursue a negligence claim based on Amici's failure to exercise due care in the preparation of the salad but that he had "failed to allege facts establishing [Amici's] breached its duty . . . when [it] prepared its [a]ntipasto [s]alad with unpitted [k]alamata olives in it." With respect to the intentional tort claim, the court determined Foor "failed to allege facts showing a reckless disregard of the safety of others sufficient to support an intentional tort."
At the hearing on the demurrer, the court adopted its tentative ruling and sustained the demurrer without leave to amend. The court explained, "This is a certain kind of olive salad that comes with whole olives. Whole olives by their nature have a pit. . . . I think the Mexicali Rose case and some of the others that are cited cover this situation." The court entered judgment for Amici's.
DISCUSSION
Standard of Review
On appeal from an order dismissing an action after the sustaining of a demurrer, we independently review the pleading to determine whether the facts alleged state a cause of action under any possible legal theory. (McCall v. PacifiCare of Cal., Inc. (2001) 25 Cal.4th 412, 415; Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967 (Aubry).) We give the complaint a reasonable interpretation, "treat[ing] the demurrer as admitting all material facts properly pleaded," but do not "assume the truth of contentions, deductions or conclusions of law." (Aubry, supra, at p. 967; Zelig v. County of Los Angeles (2002) 27 Cal.4th 1112, 1126.)
The Court Properly Sustained the Demurrer on Foor's Negligence Claim Without Leave to Amend
In Mexicali Rose, the California Supreme Court "articulated principles of liability in the context of a diner's injuries caused by food served in a restaurant." (Ford v. Miller Meat Co. (1994) 28 Cal.App.4th 1196, 1199 (Ford);4 Witkin, Summary of Cal. Law (10th ed. 2005) Sales, § 108, pp. 108-110, Mexicali Rose, supra, 1 Cal.4th at p. 617.) In Mexicali Rose, the plaintiff sued a restaurant for negligence, strict liability, and breach of the implied warranty, alleging he suffered throat injuries from ingesting a one-inch chicken bone in a chicken enchilada. He alleged the defendant "negligently left the bone in the enchilada and the food was unfit for human consumption. He also asserted he did not expect to find a bone, and it is not common knowledge there may be bones in chicken enchiladas." (Mexicali Rose, supra, at p. 620.) The trial court overruled the demurrer, but the Court of Appeal "issued a writ of mandate, directing the trial court to sustain the demurrer on all causes of action." (Ibid.)
Our high court granted review to reexamine the foreign-natural test of liability set forth in Mix v. Ingersoll Candy Co. (1936) 6 Cal.2d 674, which held there could be no tort liability for injuries caused by substances "natural" to certain types of food. (Mexicali Rose, supra, 1 Cal.4th at p. 619; see also Ford, supra, 28 Cal.App.4th at p. 1201.) The court used the term "natural" to refer "to bones and other substances natural to the product served" and not to "substances such as mold, botulinus bacteria or other substances (like rat flesh or cow eyes) not natural to the preparation of the product served." (Mexicali Rose, supra, at p. 630, fn. 5.)
The Mexicali Rose court traced the development of the "foreign-natural" test and observed that "more recent cases tended to reject the rigid foreign/natural test in favor of a reasonable expectations test, under which the substances 'natural to the preparation of the food served' are to be anticipated and thus do not render the food unfit or defective." (Ford, supra, 28 Cal.App.4th at p. 1201, quoting Mexicali Rose, supra, 1 Cal.4th at p. 630.) In doing so, the court discussed two cases, Loyacano v. Continental Insurance Company (La.Ct.App. 1973) 283 So.2d 302, 305 (Loyacano)and Ex Parte Morrison's Cafeteria of Montgomery, Inc. (Ala. 1983) 431 So.2d 975, 978 (Morrison's Cafeteria).
In Loyacano, the plaintiff broke a tooth after biting into a bone in a piece of meat wrapped in a sealed package and purchased in the defendant's store. (Loyacano, supra, 283 So.2d at p. 303.) The Louisiana Court of Appeal adopted the reasonable expectation test in considering the plaintiff's negligence claim, observing, "[i]t may be said that a product can be considered defective if it does not meet the reasonable expectations of the ordinary consumer as to its safety. It is not the fact that a defect is a natural one which is important to this inquiry, but the fact that the ordinary consumer would expect that he might encounter it, and thus he would normally take his own precautions." (Id. at p. 305.)
Applying the reasonable expectation test to determine the defendant's negligence, the Loyacano court determined "the reasonable expectation of the ordinary consumer is that the processor and vendor of ground meat would exercise the same care as that which a reasonably prudent man skilled in the art of meat handling would exercise in the removal of bones from the meat. We conclude that the defendant negligently left in the ground meat pieces of bone of a larger size than the consumer might reasonably expect, and is responsible for the damages caused." (Loyacano, supra, 283 So.2d at p. 306.)
Ten years later, in Morrison's Cafeteria, the Alabama Supreme Court applied the reasonable expectations test to the plaintiff's claims for breach of the implied warranty of fitness for human consumption and the Alabama Extended Manufacturer's Act and held that the presence of a one-centimeter bone in a fish fillet did not render the fish unfit or unreasonably dangerous as a matter of law. (Morrison's Cafeteria, supra, 431 So.2d at p. 979.) The Morrison's Cafeteria court explained its holding by observing "that what a consumer is reasonably justified in expecting is a question for the jury. [Citations.] We agree that in most instances this would be true. In other instances, however, we agree with the California Supreme Court in Mix v. Ingersoll Candy Co., supra, , wherein the court held: 'Although it may frequently be a question for a jury as the trier of facts to determine whether or not the particular defect alleged rendered the food not reasonably fit for human consumption, yet certain cases present facts from which the court itself may say as a matter of law that the alleged defect does not fall within the terms of the statute.'" (Morrison's Cafeteria, supra, 431 So.2d at p. 978.) The Morrison's Cafeteria court then concluded that as a matter of law, a restaurant patron should reasonably expect to find a fish bone in a fish filet, observing "[c]ourts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell." (Id. at p. 979.)
After describing these two cases, the Mexicali Rose court discarded the foreign-natural test in favor of the reasonable expectation test and explained, "First, whether bones or other injurious substances ought to be anticipated in a particular dish becomes a question for the trier of fact, unless as a matter of law the food was fit for consumption because the substance was natural to the food served. [Citation.] Second, and more important, this reasonable expectation test focuses not on the components of the dish, but on the final item sold to the consumer and the expectations that are engendered by the type of dish and the type of preparation used in making the dish." (Mexicali Rose, supra, 1 Cal.4th at p. 631; see also Ford, supra, 28 Cal.App.4th at p. 1201.)
The Mexicali Rose court then noted, "we agree with defendants to the extent they reason that a restaurant patron cannot expect a chicken pie to be free of all bones. Such an expectation would be unreasonable and unrealistic to the ordinary consumer and would not conform to either federal or state health and safety standards. . . . [A] reasonable plaintiff cannot expect a chicken enchilada always to be free of bones, and defendants owe no duty to provide a perfect enchilada." (Mexicali Rose, supra, 1 Cal.4th at pp. 631-632, fn. omitted.) The court also noted, however, that it "disagree[d] with defendants . . . that we should continue to preclude a plaintiff from attempting to state a cause of action in negligence when a substance natural to the preparation of the food product has caused injury. We adopt instead the reasoning of Loyacano, supra, 283 So.2d 302, 306, and Morrison's Cafeteria, supra, 431 So.2d at page 978, and depart from our foreign-natural rule to the extent it precludes an action against defendants for the failure to exercise due care in the preparation of the chicken enchilada." (Mexicali Rose, supra, at p. 632.)
The Mexicali Rose court held that "whether a plaintiff may recover for injuries caused by a natural or foreign substance can be summarized as follows: If the injury-producing substance is natural to the preparation of the food served, it can be said that it was reasonably expected by its very nature and the food cannot be determined to be unfit for human consumption or defective. Thus, a plaintiff in such a case has no cause of action in implied warranty or strict liability." (Mexicali Rose, supra, 1 Cal.4th at pp. 630-631, fns. omitted.) The court continued, "The expectations of the consumer do not, however, negate a defendant's duty to exercise reasonable care in the preparation and service of the food. Therefore, if the presence of the natural substance is due to a defendant's failure to exercise due care in the preparation of the food, an injured plaintiff may state a cause of action in negligence." (Id. at p. 631; see also Flahavan, et al., Cal. Practice Guide: Personal Injury (The Rutter Group 2010) ¶¶ 2:1378-1381, pp. 2(II)-142-2-(II)-144.)
Finally, our court concluded, "we believe a patron can reasonably expect that a restaurateur will exercise reasonable care in preparing chicken enchiladas so that any natural substances contained in the food will not be either of such size, shape or quantity to cause injury when consumed. It is reasonably foreseeable that a sizable bone could cause the unsuspecting patron substantial injury if swallowed. Under these principles, we believe it is a question for the trier of fact to determine whether the presence of the injury-producing substance was caused by the failure of the defendants to exercise reasonable care in the preparation of the food, and whether the breach of the duty to exercise such care caused the consumer's injury. In so concluding, we emphasize that restaurateurs have available all the traditional defenses to a negligence cause of action, including comparative negligence." (Mexicali Rose, supra, 1 Cal.4th at pp. 632-633, fn. omitted.)
Here, the trial court determined pits exist naturally in whole olives. We agree. "[A]n olive pit is not a foreign object but rather a naturally occurring substance in olives." (Zumpe v. Zara's Little Giant Super Market, Inc. (La.App. 2010) 35 So.3d 1158, 1161.) A pit occurs naturally in an olive, just as a pit in a cherry or an avocado. The court also held Foor did not state a claim for negligence because the presence of the olive pits in the salad was not "due to [Amici']s failure to exercise due care in the preparation of the [antipasto salad]. . . ." (Mexicali Rose, supra, 1 Cal.4th at p. 631.) As stated above, the focus of the reasonable expectation test is "on the final item sold to the consumer and the expectations that are engendered by the type of dish and the type of preparation used in making the dish." (Ibid.; see also Ford, supra, 28 Cal.App.4th at p. 1201.) It is common knowledge that olives contain pits. Accordingly, a restaurant patron who orders an antipasto salad should reasonably expect that olives in that salad will contain pits. It follows that Amici's had no duty to remove the olive pits before serving the salad, nor a duty to ensure that the whole olives were not obscured by pieces of lettuce. "Courts cannot and must not ignore the common experience of life and allow rules to develop that would make sellers of food or other consumer goods insurers of the products they sell." (Morrison's Cafeteria, supra, 431 So.2d at p. 979.)
This situation is simply not — as Foor argues — akin to a customer finding an "injury-producing chicken bone" in a chicken salad. Mediterranean style salads commonly contain unpitted olives as a planned ingredient. In contrast, chicken salads do not contain chicken bones as planned, intended ingredients.
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Foor contends the trial court was required to accept as true the allegation in the operative complaint that "'a consumer would not reasonably expect an olive to contain a pit . . . in a salad served in a restaurant.'" But Evans v. City of Berkeley (2006) 38 Cal.4th 1, the case upon which Foor relies to support this contention, does not assist him. There, the California Supreme Court noted the well-settled standard of review when a demurrer is sustained "for failure to state a cause of action": our high court explained, "'We treat the demurrer as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. [Citation.] We also consider matters which may be judicially noticed.'" (Id. at p. 6, quoting Serrano v. Priest (1971) 5 Cal.3d 584, 591.) Foor's claim that a consumer would not reasonably expect to find a whole, unpitted olive in any type of salad served in a restaurant is a conclusion of law, not a material fact we must accept as true. We are free to reject this allegation and conclude as a matter of law that the olives in the antipasto salad were fit for consumption and that a restaurant patron should reasonably expect to find a whole, unpitted olive in an antipasto salad. Moreover, Foor's allegation that he personally did not expect or "reasonably anticipate that whole olives, served in the salad, would contain pits" is not dispositive. The inquiry is whether the ordinary consumer would expect to find whole olives containing pits in the salad. As we have already stated, the focus of the reasonable expectation test is "not on the components of the dish, but on the final item sold to the consumer and the expectations that are engendered by the type of dish and the type of preparation used in making the dish." (Mexicali Rose, supra, 1 Cal.4th at p. 631; see also Ford, supra, 28 Cal.App.4th at p. 1201.)
Foor seems to contend the court could not have concluded he failed to state a cause of action for negligence because it denied Amici's request to take judicial notice of the fact that "it is reasonably anticipated that when served in a salad, a whole olive may have a pit in it." We disagree with this convoluted logic. Amici's request may not have been the proper subject for judicial notice (see, e.g., Evid. Code, § 452, subd. (h)), but the denial of that request did not prevent the court from concluding Foor's negligence claim failed as a matter of law. That Amici's did not establish, as indisputable, what a customer might "reasonably anticipate" does not mean Foor has stated a cause of action in negligence under the factual circumstances alleged.
Foor's reliance on Kolarik v. Cory Intern. Corp. (Iowa 2006) 721 N.W.2d 159, 166 (Kolarik), does not alter our conclusion. In Kolarik, the plaintiff "opened a jar of pimento-stuffed, green olives . . . which bore the label Italica Spanish Olives" and used them to make a salad. While eating the salad, he "bit down on an olive pit or pit fragment and fractured a tooth." (Id. at p. 161.) The district court granted summary judgment for the defendants on the plaintiff's negligence claim, but the Iowa Supreme Court reversed. It explained, "we believe that the purchaser of pimento-stuffed olives may reasonably anticipate that the olive pits have been removed. We are convinced . . . that a seller of stuffed olives must be cognizant that consumers will assume that the olives will be free from pits and act on that assumption in consuming the product. Consistent with that expectation, a seller must exercise reasonable care to assure that this expectation is realized. The district court erred in rejecting plaintiff's negligence claim . . . ." (Id. at p. 166.) Kolarik is distinguishable. A restaurant patron who orders an antipasto salad with olives has a completely different expectation than a purchaser of a jar of pimento-stuffed olives. One who purchases a jar labeled as containing pimento-stuffed olives can reasonably assume the pits of those olives have been removed and replaced with pimentos. Not so with one who orders an antipasto salad. A person who orders an antipasto salad with olives cannot reasonably assume the olives will be free of pits.
Foor urges us to follow Hochberg v. O'Donnell's Restaurant, Inc. (D.C. App. 1971) 272 A.2d 846, 849 (Hochberg).There, the plaintiff sued a restaurant for negligence and breach of implied warranty after he chewed an olive in a martini and injured his tooth. (Id. at p. 847.) The trial court "decided as a matter of law that a pit in an olive could not render the olive unwholesome and unfit for human consumption, and therefore directed the verdict." (Id. at p. 848, fn. 7.) On appeal, the Hochberg court applied the reasonable expectation test, explaining, "In our view it is unrealistic to deny recovery as a matter of law if, for example, a person is injured from a chicken bone while eating a sliced chicken sandwich in a restaurant, simply because the bone is natural to chicken. The exposure to injury is not much different than if a sliver of glass were there. 'Naturalness of the substance to any ingredients in the food served is important only in determining whether the consumer may reasonably expect to find such substance in the particular type of dish or style of food served.' [Citation.] Because a substance is natural to a product in one stage of preparation does not mean necessarily that it will be reasonably anticipated by the consumer in the final product served. [Citations.] It is a different matter if one is injured by a bone while eating a chicken leg or a steak or a whole baked fish. There, it may well be held as a matter of law that the consumer should reasonably expect to find a bone." (Id. at p. 849.)
The Hochberg court then concluded, "it appears the crucial consideration for the purpose of this review is that appellant saw the hole in one end of an olive and therefore assumed it had been pitted, chewed the olive and injured his tooth on the pit. He concedes that if he had not seen the hole in the olive his case would be 'extremely tenuous.' This narrows the problem to whether on these facts he was reasonably justified in expecting there was no pit in the olive and could chew without care. 'What is to be reasonably expected by the consumer is a jury question in most cases. [Citation.] Appellant admits that a fact finder might conclude that he should have exercised greater care in chewing the olive. But he argues he was entitled to have the jury resolve the issue. [¶] We think the question of what appellant was reasonably justified in expecting was properly a jury question here." (Hochberg, supra, 272 A.2d at p. 849.)
As Foor concedes in his reply brief, Hochberg is distinguishable. In Hochberg, the plaintiff saw a hole at one end of the olive and assumed the pit had been removed, prompting the Hochberg court to conclude there was a triable issue of fact regarding whether the plaintiff's expectation was justified. Here, Foor did not allege that he, like the Hochberg plaintiff, "saw the hole in one end of an olive." Unlike the plaintiff in Hochberg, Foor was confronted with a salad containing many olives, none of which had holes at one end. Therefore, any expectation Foor had that the olives in the antipasto salad would be pitted was unreasonable. As a matter of law, Foor should have reasonably expected to find pits in the olives, just as a consumer would expect to find a bone in a chicken leg or a pit in a whole peach.
We conclude the trial court properly sustained Amici's demurrer to the negligence cause of action without leave to amend because the operative complaint failed to allege facts demonstrating Amici's negligently prepared the antipasto salad by serving whole unpitted olives. Having reached this conclusion, we also reject Foor's contention that Amici's had a duty to warn him that the olives in the antipasto salad contained pits. Foor cites no authority compelling the conclusion that a restaurant has a duty to warn customers about natural substances in certain types of food, the presence of which is to be expected by the ordinary consumer.
The Court Properly Sustained the Demurrer on Foor's Intentional Tort Claim Without Leave to Amend
The court sustained Amici's demurrer to Foor's cause of action for intentional tort, concluding he "failed to allege facts showing a reckless disregard of the safety of others. . . ." On appeal, Foor claims he alleged "a reckless tort" because he alleged Amici's engaged in "extremely careless behavior" by serving the antipasto with "small olives containing pits, with pieces of lettuce that hid[ ] the small olives with pits, [and] without warning of the presence of pits[.]" There are two problems with this argument. First, and as discussed above, Amici's did not have a duty to remove the pits from the olives before serving the salad. "'"A tort, whether intentional or negligent, involves a violation of a legal duty, imposed by statute, contract or otherwise, owed by the defendant to the person injured. Without such a duty, any injury is 'damnum absque injuria'— injury without wrong. [Citations.]"'" (Catsouras v. Department of California Highway Patrol (2010) 181 Cal.App.4th 856, 876.) Second, Amici's did not act recklessly by serving an antipasto salad with whole olives because, as we have concluded above, a restaurant patron should reasonably expect to find whole, unpitted olives in an antipasto salad.
Finally, we reject Foor's request for leave to amend the operative complaint to allege claims for strict liability and breach of implied warranty. As discussed above, our high court's decision in Mexicali Rose forecloses this argument. (Mexicali Rose, supra, 1 Cal.4th at p. 631.) We are bound to follow Mexicali Rose, particularly because Foor has not established it was wrongly decided. (Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455-456; City of Los Angeles v. Glair (2007) 153 Cal.App.4th 813, 822.) We also reject Foor's request — raised for the first time on appeal — for leave to amend the operative complaint to allege the elements of res ipsa loquitur. We "'ignore arguments, authority, and facts not presented and litigated in the trial court.'" (Perez v. Grajales (2008) 169 Cal.App.4th 580, 591, quoting Bialo v. Western Mutual Ins. Co. (2002) 95 Cal.App.4th 68, 73.)
DISPOSITION
The judgment is affirmed. Amici's shall recover its costs on appeal.
Jones, P.J. We concur: Simons, J. Bruiniers, J.