Opinion
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168 Cal.App.4th 833b __ Cal.Rptr.3d__ ALEXIS SARTI, Plaintiff and Appellant, v. SALT CREEK LTD., Defendant and Respondent. G037818 California Court of Appeal, Fourth District, Third Division November 26, 2008Super. Ct. No. 05CC08588
The petition for rehearing is DENIED.
THE COURT
The opinion, filed October 27, 2008, (167 Cal.App.4th 1187; __Cal.Rptr.3d__ ), is hereby modified as
On page 20 of the slip opinion, in the first sentence of the first complete paragraph [167 Cal.App.4th 1205, advance report, 3d full par., line 2], after the words "without authority," insert the following new footnote 11:
11. To be sure, the words "probable cause" had appeared as part of a quotation in Dougherty from an earlier Massachusetts opinion, Monahan v. Economy Grocery Stores Corp. (1933) 282 Mass. 548, 550 [185 N.E. 34] ["The plaintiff was not bound to exclude every other possible cause for his illness, but he was required to show that the probable cause was the unwholesomeness of the corn."]. But the Dougherty court's point in using the quotation was to support the idea that the plaintiff did not have to exclude all other causes. Hence, the quotation was preceded, in Dougherty, by (1) a sentence recognizing that the plaintiff had the burden of proof ("Of course, the burden was on the plaintiff to show by a preponderance of the evidence that the hay which he had purchased from the defendant contained poison which killed the cows.") (Dougherty, supra, 74 Cal.App.2d at p. 135.) followed by (2) a contrasting sentence rejecting the idea that the plaintiff had to exclude all alternative causes ("But it was not necessary for the plaintiff to furnish evidence which absolutely precluded the possibility of the cattle procuring some other poisonous food.") (Ibid.) Having made its point rejecting the idea that plaintiff had to "preclude[] the possibility" (ibid.) of alternative sources of poisoning, the Dougherty court supported its rejection with a passage from the Monahan decision, which included the words, " 'The plaintiff was not bound to exclude every other possible cause . . . . ' " (Ibid.) The Monahan court's use of the phrase "probable cause" was not the point of the passage. (See Dougherty, supra, 74 Cal.App.2d at p. 135.) And, for its part, the Minder court wisely did not cite Dougherty decision for a heightened "probable cause" standard because, ironically and in context, Dougherty's use of a quote using the phrase was actually contrary to Minder's apparent preference for a must-exclude-all-other-causes rule.
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(2) Renumber all remaining footnotes accordingly.
These modifications do not affect the judgment.